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Silverman v. Nicholson

Supreme Court of New York, Second Department

October 30, 2013

Henry B. Silverman, et al., appellants,
v.
Harry Nicholson, et al., respondents. Index No. 19062/11

Doar Rieck Kaley & Mack, New York, N.Y. (John F. Kaley of counsel), for appellants.

Ciarelli & Dempsey, P.C. Riverhead, N.Y. (John L. Ciarelli of counsel), for respondents.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, LEONARD B. AUSTIN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and unjust enrichment, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated February 23, 2012, as granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint, and denied their cross motion for summary judgment on the first and second causes of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), although the facts pleaded are presumed to be true and are to be accorded every favorable inference, " bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration'" (Lutz v Caracappa, 35 A.D.3d 673, 674, quoting Doria v Masucci, 230 A.D.2d 764, 765 [some internal quotation marks omitted]). Here, the record clearly shows that the assessment imposed by the defendants upon the plaintiffs for legal fees was effected by the defendants solely in their capacity as members of the Board of Directors of the Wells Creek Home Owner's Association. The plaintiffs failed to adequately allege any independent torts against the defendants in their individual capacities (see generally Levin v Kitsis, 82 A.D.3d 1051, 1053; Kats v East 13th St. Tifereth Place, LLC, 73 A.D.3d 706, 708; Rosen v Watermill Dev. Corp., 1 A.D.3d 424, 425). Accordingly, the Supreme Court properly granted the defendants' motion to dismiss the complaint, and properly denied the plaintiffs' cross motion for summary judgment on the first and second causes of action.

DILLON, J.P., DICKERSON, HALL and AUSTIN, JJ., concur.


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