Breakwaters Townhomes Ass'n of Buffalo, Inc. v. Breakwaters of Buffalo, Inc.

207 A.D.2d 963, 616 N.Y.S.2d 829, 1994 N.Y. App. Div. LEXIS 10132

Opinion

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court should have granted defendant Albert V. Randaccio summary judgment dismissing the fourth cause of action, except to the extent that it seeks recovery for common-law fraud, inasmuch as plaintiffs essentially seek recovery based on violations of the Martin Act (General Business Law art 23-A). It is well established that there is no implied private cause of action for violation of the antifraud provisions of that statute (see, CPC Intl. v McKesson Corp., 70 NY2d 268; see also, Vermeer Owners v Guterman, 78 NY2d 1114; Rego Park Gardens Owners v Rego Park Gardens Assocs., 191 AD2d 621, 622).

Randaccio contends that the seventh cause of action, which alleges violations of General Business Law §§349 and 350, should be dismissed because securities transactions do not come within the ambit of those statutory provisions. That contention lacks merit (see, Board of Managers v Bayberry Greens Assocs., 174 AD2d 595, 596).

Lastly, we conclude that the court properly denied plaintiffs’ cross motion for summary judgment seeking a determination that Randaccio signed the certification required under the Martin Act in his individual capacity. Regardless of whether Randaccio signed the certificate in his individual or corporate capacity, he may be liable personally as an officer of the corporation if it is established that he personally participated in, profited from, or had knowledge of the corporation’s alleged wrongful conduct (see, Halford v First Jersey Sec., 182 AD2d 1003, 1004; Board of Managers v Fairways at N. Hills, 150 AD2d 32, 39; Prudential-Bache Metal Co. v Binder, 121 AD2d 923, 926). (Appeals from Order of Supreme Court, Erie County, Gossel, J.—Summary Judgment.) Present—Green, J. P., Pine, Fallon, Callahan and Davis, JJ.