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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 18, 1993

StatusPublished

Cited by2 cases

This text of 191 A.D.2d 336 (Carey v. Cunningham) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

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

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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.

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—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.

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Bluebook (online)

191 A.D.2d 336, 595 N.Y.S.2d 185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carey-v-cunningham-nyappdiv-1993.

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