Summary
stating that the complaint, "contains no factual allegations from which it can be inferred that [one defendant] had agreed with the codefendants . . . to cooperate in a fraudulent scheme"
Summary of this case from M.E.S., Inc. v. Safeco Ins. Co. of Am.Opinion
November 27, 1989
Appeal from the Supreme Court, Queens County (Santucci, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the amended complaint insofar as it is asserted against Apex Trucking Co., Inc. and the tenth cause of action of the amended complaint are dismissed, and the remaining causes of action asserted against the remaining defendants are severed.
In the amended complaint the only cause of action asserted against the defendant Apex Trucking Co., Inc. alleges a conspiracy or agreement to defraud the plaintiffs by diverting the assets of the defendant Meridian Distribution Services, Inc. It is well settled that no independent tort of civil conspiracy is recognized in this State (see, e.g., Schlotthauer v Sanders, 143 A.D.2d 84, 85; Chiaramonte v Boxer, 122 A.D.2d 13). Rather, the cause of action rests upon an underlying wrong, here a cause of action sounding in fraud (see, Reo v Shudt, 144 A.D.2d 793, 795; Callahan v Gutowski, 111 A.D.2d 464, 465). We conclude that the Supreme Court erred in refusing to dismiss the amended complaint insofar as it is asserted against Apex Trucking Co., Inc. The amended complaint, even read in a light most favorable to the plaintiffs (see, Cohn v Lionel Corp., 21 N.Y.2d 559, 562), fails to satisfy the specificity and particularity requirements of CPLR 3013 and 3016 (b). It contains no factual allegations from which it can be inferred that Apex Trucking Co., Inc. had agreed with the codefendants, against whom most of the substantive tort claims still stand, to cooperate in a fraudulent scheme (see, Schlotthauer v Sanders, supra; National Westminister Bank v Weksel, 124 A.D.2d 144, 147; Goldstein v Siegel, 19 A.D.2d 489, 493).
The tenth cause of action sounding in defamation must also be dismissed. Even assuming that the allegations of the amended complaint are sufficiently specific to be construed as defamatory, the communications therein would be protected by a qualified privilege (see, Mihlovan v Grozavu, 72 N.Y.2d 506, 509; Lovell Co. v Houghton, 116 N.Y. 520, 526). The plaintiffs' sole opposition to the defendants' motion was an affirmation of their attorney which lacks probative value (CPLR 3212 [b]). The plaintiffs have failed to demonstrate the existence of a triable issue of fact by proffering evidence that the defendants were motivated by actual malice or ill will in order to overcome the qualified privilege (see, Toker v Pollak, 44 N.Y.2d 211, 219; Shapiro v Health Ins. Plan, 7 N.Y.2d 56, 60). Thus, the defendants are entitled to partial summary judgment on this cause of action. Thompson, J.P., Bracken, Rubin and Spatt, JJ., concur.