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Ullman v. Hillyer

Supreme Court of New York, First Department

May 21, 2013

Jonathan Ullman, Plaintiff-Appellant,
v.
Kazuko Hillyer, Defendant-Respondent.

Jonathan Ullman, appellant pro se.

Cornicello, Tendler & Baumel-Cornicello, LLP, (David B. Tendler of counsel), for respondent.

Tom, J.P., Acosta, Renwick, DeGrasse, Richter, JJ.

Order, Supreme Court, New York County (Paul Wooten, J.), entered October 16, 2012, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

The court properly dismissed plaintiff's complaint pursuant to CPLR 3211(a)(3). Plaintiff improperly brought this action in his individual capacity to recover damages on behalf of the nonparty not-for-profit corporation he founded (see generally Abrams v Donati, 66 N.Y.2d 951 [1985]). In any event, to the extent that plaintiff alleges an individual harm, defendant's representations concerning her future intent to perform or her opinions were not actionable as fraud (see Laura Corio, M.D., PLLC v R. Lewin Interior Design, Inc., 49 A.D.3d 411, 412 [1st Dept 2008]; Jacobs v Lewis, 261 A.D.2d 127, 127-128 [1st Dept 1999]). Similarly, defendant's emails containing her opinions, considered as part of the text of the communications in which they appear, were not actionable as libel (see Brian v Richardson, 87 N.Y.2d 46, 50-51 [1995]).

Plaintiff's proposed amendment to the complaint does not cure his lack of capacity to sue and standing, or render his claims actionable (see Kocourek v Booz Allen Hamilton, Inc., 71 A.D.3d 511, 512 [1st Dept 2010]).

We have considered plaintiff's remaining arguments and find them unavailing.


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