        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

155
CA 12-01384
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


JENNIFER L. ABBOTT, ET AL.,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

TONAWANDA COKE CORPORATION, ET AL., DEFENDANTS,
AND JAMES DONALD CRANE, ALSO KNOWN AS J.D.
CRANE OR J. DONALD CRANE, DEFENDANT-APPELLANT.


HODGSON RUSS LLP, BUFFALO (BENJAMIN M. ZUFFRANIERI, JR., OF COUNSEL),
FOR DEFENDANT-APPELLANT.

RICHARD J. LIPPES & ASSOCIATES, BUFFALO, AND JOSEPH D. GONZALEZ,
WESTLAKE VILLAGE, CALIFORNIA, OF THE CALIFORNIA BAR, ADMITTED PRO HAC
VICE, FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Paula L.
Feroleto, J.), entered June 8, 2012. The order, among other things,
denied that part of defendants’ motion seeking to dismiss the first
amended complaint against defendant James Donald Crane, also known as
J.D. Crane or J. Donald Crane.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking, inter
alia, damages for personal injuries and property damage that resulted
from exposure to various toxic emissions allegedly released by
defendant Tonawanda Coke Corporation (Tonawanda Coke). Plaintiffs
assert in the first amended complaint that defendant James Donald
Crane, also known as J.D. Crane or J. Donald Crane, is individually
liable to plaintiffs because Crane, as an owner and officer of
Tonawanda Coke, participated in and approved of decisions that
resulted in the toxic emissions from the Tonawanda Coke plant. As
relevant to this appeal, defendants moved to dismiss the first amended
complaint against Crane, and Supreme Court denied that part of the
motion. We affirm.

     Inasmuch as defendants’ motion is based on CPLR 3211 (a) (7), we
must “accept the facts as alleged in the [first amended] complaint as
true, accord plaintiffs the benefit of every possible favorable
inference, and determine only whether the facts as alleged fit within
any cognizable legal theory . . . [T]he criterion is whether
[plaintiffs have] a cause of action, not whether [they have] stated
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                                                        CA 12-01384

one” (Leon v Martinez, 84 NY2d 83, 87-88 [internal quotation marks
omitted]; see Genesee/Wyoming YMCA v Bovis Lend Lease LMB, Inc., 98
AD3d 1242, 1244). Crane contends that the court erred in denying that
part of defendants’ motion to dismiss the first amended complaint
against him because plaintiffs failed to allege that he actively
participated in the tortious conduct and he cannot be held
individually liable based upon his status as an owner and officer of
Tonawanda Coke. We reject that contention. Although “[a] corporate
officer is not held liable for the negligence of the corporation
merely because of his official relationship[,]” that officer will be
held liable if it is established “that the officer was a participant
in the wrongful conduct” (Olszewski v Waters of Orchard Park, 303 AD2d
995, 996 [internal quotation marks omitted]). Plaintiffs alleged in
the first amended complaint that Crane was or should have been aware
of the relevant environmental regulations, was ultimately responsible
for reporting benzene emissions to the Environmental Protection
Agency, and personally supervised and exercised control over Tonawanda
Coke’s operations (see Sisino v Island Motocross of N.Y., Inc., 41
AD3d 462, 464-465; see also Poley v Rochester Community Sav. Bank
[appeal No. 2], 159 AD2d 944, 945). Thus, plaintiffs have alleged
that Crane actively participated in the wrongful conduct by approving
the policies that allegedly caused the environmental contamination
(see Sisino, 41 AD3d at 464-465; see also Poley, 159 AD2d at 945).




Entered:   March 15, 2013                      Frances E. Cafarell
                                               Clerk of the Court
