Alevy v. Uminer

Appellate Division of the Supreme Court of New York

Alevy v. Uminer

49 A.D.3d 301, 852 N.Y.2d 131

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 6, 2008

StatusPublished

This text of 49 A.D.3d 301 (Alevy v. Uminer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Alevy v. Uminer, 49 A.D.3d 301, 852 N.Y.2d 131 (N.Y. Ct. App. 2008).

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Opinion

Defendant had a contractual obligation not to disclose confidential information that he might have acquired during the course of his association with plaintiff, and he agreed to [302]*302refrain, while working for plaintiff, from engaging in any activity, employment, or business arrangement that conflicted with plaintiffs interests. Construing the pleadings liberally and accepting the facts alleged as true (Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the motion court properly found that the complaint states a cause of action for breach of a written agreement (see Minnelli v Soumayah, 41 AD3d 388, 389 [2007]).

The complaint also states a cause of action for breach of an oral agreement, since, as the court found, the oral agreement did not modify the written agreement but was a separate, unrelated agreement and therefore not subject to General Obligations Law § 15-301 (see Rose v Spa Realty Assoc., 42 NY2d 338, 343 [1977]).

As to the breach of fiduciary duty cause of action, plaintiff alleges that by the time defendant’s employment was terminated, 12 years after he was hired, with no college education and no experience in the business of commercial mortgages, he was managing the day-to-day operations of the company and acting as its de facto chief operating officer. These allegations describe ongoing conduct between the parties that may give rise to a fiduciary relationship (see Wiener v Lazara Freres & Co., 241 AD2d 114, 122 [1998]).

The court properly declined to dismiss the prayer for injunctive relief. Concur—Mazzarelli, J.P., Saxe, Gonzalez and Acosta, JJ. [See 2007 NY Slip Op 30355(U).]

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Defendant had a contractual obligation not to disclose confidential information that he might have acquired during the course of his association with plaintiff, and he agreed to [302]*302refrain, while working for plaintiff, from engaging in any activity, employment, or business arrangement that conflicted with plaintiffs interests. Construing the pleadings liberally and accepting the facts alleged as true (Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the motion court properly found that the complaint states a cause of action for breach of a written agreement (see Minnelli v Soumayah, 41 AD3d 388, 389 [2007]).

The complaint also states a cause of action for breach of an oral agreement, since, as the court found, the oral agreement did not modify the written agreement but was a separate, unrelated agreement and therefore not subject to General Obligations Law § 15-301 (see Rose v Spa Realty Assoc., 42 NY2d 338, 343 [1977]).

As to the breach of fiduciary duty cause of action, plaintiff alleges that by the time defendant’s employment was terminated, 12 years after he was hired, with no college education and no experience in the business of commercial mortgages, he was managing the day-to-day operations of the company and acting as its de facto chief operating officer. These allegations describe ongoing conduct between the parties that may give rise to a fiduciary relationship (see Wiener v Lazara Freres & Co., 241 AD2d 114, 122 [1998]).

The court properly declined to dismiss the prayer for injunctive relief. Concur—Mazzarelli, J.P., Saxe, Gonzalez and Acosta, JJ. [See 2007 NY Slip Op 30355(U).]

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Bluebook (online)

49 A.D.3d 301, 852 N.Y.2d 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alevy-v-uminer-nyappdiv-2008.

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