Fischer v. Maloney

56 A.D.2d 884, 392 N.Y.S.2d 666, 1977 N.Y. App. Div. LEXIS 11265

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 1977
• Status: Published

Opinion

In an action to recover damages for violation of sections 70 and 71 of the Civil Rights Law (the first cause of action) and for the intentional infliction of mental or emotional distress (the second cause of action), the appeal is from an order of the Supreme Court, Queens County, dated August 3, 1976, which denied appellants’ motion for summary judgment. Order modified, on the law, by adding thereto, immediately after the word "denied”, the following: "as to the second cause of action but is granted as to the first cause of action, which is hereby severed”. As so modified, order affirmed, with $50 costs and disbursements to appellants. On June 25, 1975 a defamation action against the plaintiff herein, brought in the name of Southridge Cooperative Section 2, Inc., was dismissed for failure to state a cause of action on behalf of that corporate plaintiff. Appellants are members of the co-operative’s board of directors. Since the action was commenced by the president of the co-operative, plaintiff cannot claim that the suit was commenced by appellants without the co-operative’s consent (see West View Hills v Lizau Realty Corp., 6 NY2d 344). Accordingly, sections 70 and 71 of the Civil Rights Law were not violated. The second cause of action, for the intentional infliction of mental or emotional distress based upon the defamation action, presents questions of fact which can only be resolved after a trial (see Battalla v State of New York, 10 NY2d 237; Halio v Lurie, 15 AD2d 62). Latham, Acting P. J., Margett, Suozzi and Mollen, JJ., concur.