Cohen v. Cohen

219 A.D.2d 493, 631 N.Y.S.2d 514, 1995 N.Y. App. Div. LEXIS 9265

Opinion

—Order and judgment (one paper), Supreme Court, New York County (Helen Freedman, J.), entered August 3, 1993, which, after a non-jury trial, awarded damages in favor of plaintiff Gyora George Cohen, individually, and against defendant Jess J. Cohen, individually, unanimously affirmed, with costs.

The IAS Court did not err in entering judgment in favor of plaintiff Gyora George Cohen individually, as its decision was grounded in the eighth cause of action of the complaint, breach of contract, and not on a derivative cause of action. Specifically, the individual plaintiff was awarded damages for breach of the parties’ subscription agreement. This duty owed by defendant to plaintiff individually arose independently of any duty owed by defendant to the corporation, and was therefore a proper basis for an individual cause of action. The IAS Court’s credibility determinations are entitled to great deference on appeal and its conclusion that an agreement existed between plaintiff Gyora George Cohen and his brother, defendant Jess J. Cohen, which was breached by defendant, is amply supported by the record. Moreover, in our view, the result below achieved justice between the parties.

We are unpersuaded that the other contentions raised on appeal warrant reversal. Concur — Sullivan, J. P., Ellerin, Wallach, Williams and Mazzarelli, JJ.