Poley v. Rochester Community Savings Bank

Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Plaintiffs alleged in their complaint that defendant Warshof and his attorney submitted affidavits in related litigation which contained false and libelous statements not relevant to that litigation. We conclude that Supreme Court did not err in granting defendants’ preanswer motion to dismiss for failure to state a cause of action. Although the statements were not relevant to the issues raised on the motion made in the related litigation, neither statement was "so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame” (Martirano v Frost, 25 NY2d 505, 508; cf, Dachowitz v Kranis, 61 AD2d 783, 784, mot to dismiss denied 47 NY2d 773).

The court erred, however, in granting the motion of defendants Simon, Hammele and Hostutler for sanctions pursuant to CPLR 8303-a. Implicit in the court’s denial of the request *945for sanctions by other defendants is a finding that the claim of libel was not "frivolous” within the meaning of CPLR 8303-a. A different conclusion with respect to Simon, Hammele and Hostutler was not warranted. As officers and directors of defendant bank, the individuals could be held personally liable if they participated in the alleged wrongful conduct (see, Clark v Pine Hill Homes, 112 AD2d 755). Allegations that these individual defendants consented to and approved the insertion of the statements in the affidavits were facially sufficient to support a claim of liability (see, Cleland v Fort Ticonderoga Assn., 71 AD2d 740). Accordingly, the imposition of sanctions was improper and that portion of the order awarding sanctions should be deleted. (Appeal from order of Supreme Court, Monroe County, Tillman, J. — dismiss complaint; imposition of costs.) Present — Dillon, P. J., Boomer, Green and Balio, JJ.