Di Nardo v. L & W Industrial Park of Buffalo, Inc.

Order unanimously reversed, with costs, defendant Schectman’s motion to dismiss granted with leave to plaintiff to renew his motion, in accordance with the following memorandum: Plaintiff alleges that after he, as real estate broker, brought together the corporate defendants, L & W Industrial Park of Buffalo, Inc., and Truly Magic Products, Inc., as seller and buyer respectively of a certain industrial park, the corporate defendants, together with those of their officers and directors named as individual defendants, conspired to deprive plaintiff of his real estate commission. Appellant is president of corporate defendant L & W Industrial Park, Inc. The trial court denied appellant’s motion to dismiss as to him pursuant to CPLR 3211 (subd [a], par 7) for failure to state a cause of action. Generally, when an officer or director acts on behalf of his corporation, he may not be held liable for inducing his corporation to violate its contractual obligations unless his activity involves separate tortious conduct or results in personal profit (Turntables, Inc. v M.B. Plastics Corp., 31 AD2d 792; Rothschild v WorldWide Automobiles Corp., 24 AD2d 861, affd 18 NY2d 982). Plaintiff’s pleadings contain no allegation that there was tortious conduct on the part of appellant which was separate from his conduct as officer and director of L & W or that appellant personally profited from the scheme to avoid paying plaintiff’s commission. In view of this, Special Term erred in refusing to dismiss the complaint as to appellant. However, under the circumstances of this case, plaintiff should, within 20 days of service of the order to be entered herein, be permitted to present evidence showing separate tortious conduct or personal profit on the part of appellant for the purpose of obtaining permission to replead (see CPLR 3211, subd [e]; Roberts v Finkel, 46 AD2d 878). (Appeal from order of Erie Supreme Court — dismiss complaint.) Present — Cardamone, J. P., Hancock, Jr., Schnepp, Doerr and Moule, JJ.