A leading treatise on corporations states that a director may be held individually liable to third parties for a corporate tort if he either participated in the tort or else "directed, controlled, approved, or ratified the decision that led to the plaintiff's injury" (see 3A Fletcher, Cyclopedia of Corporations § 1135). This rule protects individual board members who did not participate or aid and abet the tortfeasors from being held vicariously liable for the tortfeasors' action.
Nevertheless, defendants contend that this Court's decision in Pelton v 77 Park Ave. Condominium (38 AD3d 1 [2006]) requires that the discrimination claims be dismissed as against Barnes. In Pelton, the plaintiff brought a disability discrimination claim, under the City HRL, against his condominium and the individual members of the board of managers based on their alleged failure to properly accommodate his disability. This Court granted summary judgment dismissing the action against{**99 AD3d at 50} the individual board members, reasoning that (1) the Levandusky standard was not satisfied, and (2) the plaintiff failed to allege "independent tortious conduct" by the individual defendants "in order to overcome the public policy that supports the business judgment rule" (id. at 10). However, there are two problems with this reasoning. First, as discussed above, the Levandusky rule will not protect a board member where he engages in discriminatory conduct. Second, Pelton takes a rule that applies where a cooperative or condominium board is alleged to have breached a contractual obligation, and incorrectly applies it where a board allegedly engaged in the intentional tort of discrimination. That is, Pelton failed to disentangle the principles of individual corporate director liability in the brea