Ullman v Hillyer

Ullman v Hillyer 2013 NY Slip Op 03616 Decided on May 21, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 21, 2013
Tom, J.P., Acosta, Renwick, DeGrasse, Richter, JJ.
10154 110068/11

[*1]Jonathan Ullman, Plaintiff-Appellant,

v

Kazuko Hillyer, Defendant-Respondent.




Jonathan Ullman, appellant pro se.
Cornicello, Tendler & Baumel-Cornicello, LLP, New York
(David B. Tendler of counsel), for respondent.

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 NY2d 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 AD3d 411, 412 [1st Dept 2008]; Jacobs v Lewis, 261 AD2d 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 NY2d 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 AD3d 511, 512 [1st Dept 2010]).

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

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 21, 2013

CLERK