Carey v. Cunningham

Appellate Division of the Supreme Court of New York

Carey v. Cunningham

191 A.D.2d 336, 595 N.Y.S.2d 185

Appellate Division of the Supreme Court of the State of New York·Decided March 18, 1993·Published·Cited by 2 cases

Opinion

—Order and judgment (one paper), Supreme Court, New York County (Carmen Beauchamp Ciparick, J.), entered March 26, 1992, granting defendant’s motion to dismiss the complaint, and order, same court and Justice, entered November 20, 1991, which had denied plaintiffs’ motion to renew, unanimously affirmed, with costs.

The exculpatory clause in the voting trust agreement insulated defendant trustee from liability except for acts of bad faith or purposeful malfeasance (see, O’Hayer v de St. Aubin, 30 AD2d 419, 423; Matter of Balfe, 245 App Div 22, 24) and none of the acts alleged herein rise to that level. Plaintiffs failed to demonstrate good cause to support their cause of action in seeking leave to replead (CPLR 3211 [e]), and leave to renew was properly denied since the facts were known to them when the original motion was made. Their failure to [337]*337communicate those facts to their attorney is not a valid excuse (see, Matter of Beiny, 132 AD2d 190, 210, lv dismissed 71 NY2d 994).

We have considered plaintiffs’ other contentions and find them to be without merit. Concur — Rosenberger, J. P., Ellerin, Ross, Asch and Kassal, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Order and judgment (one paper), Supreme Court, New York County (Carmen Beauchamp Ciparick, J.), entered March 26, 1992, granting defendant’s motion to dismiss the complaint, and order, same court and Justice, entered November 20, 1991, which had denied plaintiffs’ motion to renew, unanimously affirmed, with costs.

The exculpatory clause in the voting trust agreement insulated defendant trustee from liability except for acts of bad faith or purposeful malfeasance (see, O’Hayer v de St. Aubin, 30 AD2d 419, 423; Matter of Balfe, 245 App Div 22, 24) and none of the acts alleged herein rise to that level. Plaintiffs failed to demonstrate good cause to support their cause of action in seeking leave to replead (CPLR 3211 [e]), and leave to renew was properly denied since the facts were known to them when the original motion was made. Their failure to [337]*337communicate those facts to their attorney is not a valid excuse (see, Matter of Beiny, 132 AD2d 190, 210, lv dismissed 71 NY2d 994).

We have considered plaintiffs’ other contentions and find them to be without merit. Concur — Rosenberger, J. P., Ellerin, Ross, Asch and Kassal, JJ.

Carey v. Cunningham, 191 A.D.2d 336, 595 N.Y.S.2d 185 (N.Y. Ct. App. 1993).

Pincite

191 A.D.2d 336 (Carey v. Cunningham) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related