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

1068
CA 12-00528
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.


ROSALYN JOBSON AND W. CHARLES JOBSON,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

MICHAEL PROGNO, DEFENDANT-RESPONDENT,
ET AL., DEFENDANTS.


HARRIS BEACH PLLC, PITTSFORD (TERESA BAIR OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

MICHAEL PROGNO, DEFENDANT-RESPONDENT PRO SE.


     Appeal from an order of the Supreme Court, Monroe County (Kenneth
R. Fisher, J.), entered May 11, 2011. The order granted the motion of
defendant Michael Progno to dismiss the amended complaint.

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

     Memorandum: Plaintiffs appeal from an order granting the motion
of Michael Progno (defendant) to dismiss the amended complaint.
Initially, we note that plaintiffs address only claims made by Rosalyn
Jobson (plaintiff), and thus they are deemed to have abandoned any
contention that Supreme Court erred in granting defendant’s motion
with respect to claims made by plaintiff W. Charles Jobson (see
generally Ciesinski v Town of Aurora, 202 AD2d 984, 984). With
respect to plaintiff’s claims, it is well settled that an individual
shareholder may not maintain an action for a wrong done to the
corporation (see Citibank v Plapinger, 66 NY2d 90, 93 n, rearg denied
67 NY2d 647), unless the shareholder alleges that the tortfeasor has
breached a duty owed to the shareholder independent of any duty owed
to the corporation (see e.g. Behrens v Metropolitan Opera Assn., Inc.,
18 AD3d 47, 51). It is equally well settled that “allegations of
mismanagement or diversion of assets by officers or directors to their
own enrichment, without more, plead a wrong to the corporation only,
for which a shareholder may sue derivatively but not individually . .
. A complaint the allegations of which confuse a shareholder’s
derivative and individual rights will, therefore, be dismissed”
(Abrams v Donati, 66 NY2d 951, 953, rearg denied 67 NY2d 758).
Consequently, we conclude that the court properly granted defendant’s
motion with respect to plaintiff because “none of the [claims asserted
by her] arise from an independent duty owed to [her] individually,
unrelated to [her] status as a shareholder” (Albany–Plattsburgh United
                                 -2-                         1068
                                                        CA 12-00528

Corp. v Bell, 307 AD2d 416, 420, lv dismissed in part and denied in
part 1 NY3d 620; cf. Craven v Rigas, 85 AD3d 1524, 1527, lv dismissed
17 NY3d 932).




Entered:   November 9, 2012                    Frances E. Cafarell
                                               Clerk of the Court
