Epstein Engineering, P.C. v. Cataldo

Appellate Division of the Supreme Court of New York

Epstein Engineering, P.C. v. Cataldo

2017 NY Slip Op 3593, 150 A.D.3d 411, 51 N.Y.S.3d 395

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

DecidedMay 4, 2017

Docket3358 603146/08

StatusPublished

Cited by1 cases

This text of 2017 NY Slip Op 3593 (Epstein Engineering, P.C. v. Cataldo) 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

Epstein Engineering, P.C. v. Cataldo, 2017 NY Slip Op 3593, 150 A.D.3d 411, 51 N.Y.S.3d 395 (N.Y. Ct. App. 2017).

Pincite

Opinion

Order, Supreme Court, New York County (George J. Silver, J.), entered October 8, 2015, which, insofar as appealed from as limited by the briefs, denied plaintiff’s motion for partial summary judgment on the issue of liability on its second through fifth causes of action alleging breach of fiduciary duty and the duty of loyalty, unfair competition, conversion, and fraud, unanimously affirmed, without costs.

The motion court properly denied plaintiff’s motion for summary judgment on its second cause of action for breach of the fiduciary duty of loyalty. Even assuming that plaintiff has established that defendants were disloyal in operating a competing business while employed by plaintiff, plaintiff has failed to establish that defendants usurped any corporate opportunity, by showing that it was seeking any of defendants’ allegedly competing projects, or that its survival was jeopardized *412 by its failure to acquire any of those projects (see Lee v Manchester Real Estate & Constr., LLC, 118 AD3d 627, 628 [1st Dept 2014]; Alexander & Alexander of N.Y. v Fritzen, 147 AD2d 241, 246-247 [1st Dept 1989]).

In light of plaintiff’s argument that defendants’ “disloyal conduct also requires findings of liability for [plaintiff’s] other causes of action,” and since plaintiff does not posit any independent damages for any of those claims, summary judgment was also properly denied as to plaintiff’s remaining claims for unfair competition, conversion, and fraud (see e.g. Perez v Violence Intervention Program, 116 AD3d 601, 602 [1st Dept 2014], lv denied 25 NY3d 915 [2015]). In any event, plaintiff failed to establish entitlement to summary judgment as to any of those claims.

We have considered plaintiff’s remaining contentions, and find them unavailing.

Concur—Sweeny, J.P., Mazzarelli, Moskowitz and Kahn, JJ.

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Order, Supreme Court, New York County (George J. Silver, J.), entered October 8, 2015, which, insofar as appealed from as limited by the briefs, denied plaintiff’s motion for partial summary judgment on the issue of liability on its second through fifth causes of action alleging breach of fiduciary duty and the duty of loyalty, unfair competition, conversion, and fraud, unanimously affirmed, without costs.

The motion court properly denied plaintiff’s motion for summary judgment on its second cause of action for breach of the fiduciary duty of loyalty. Even assuming that plaintiff has established that defendants were disloyal in operating a competing business while employed by plaintiff, plaintiff has failed to establish that defendants usurped any corporate opportunity, by showing that it was seeking any of defendants’ allegedly competing projects, or that its survival was jeopardized *412 by its failure to acquire any of those projects (see Lee v Manchester Real Estate & Constr., LLC, 118 AD3d 627, 628 [1st Dept 2014]; Alexander & Alexander of N.Y. v Fritzen, 147 AD2d 241, 246-247 [1st Dept 1989]).

In light of plaintiff’s argument that defendants’ “disloyal conduct also requires findings of liability for [plaintiff’s] other causes of action,” and since plaintiff does not posit any independent damages for any of those claims, summary judgment was also properly denied as to plaintiff’s remaining claims for unfair competition, conversion, and fraud (see e.g. Perez v Violence Intervention Program, 116 AD3d 601, 602 [1st Dept 2014], lv denied 25 NY3d 915 [2015]). In any event, plaintiff failed to establish entitlement to summary judgment as to any of those claims.

We have considered plaintiff’s remaining contentions, and find them unavailing.

Concur—Sweeny, J.P., Mazzarelli, Moskowitz and Kahn, JJ.

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Bluebook (online)

2017 NY Slip Op 3593, 150 A.D.3d 411, 51 N.Y.S.3d 395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/epstein-engineering-pc-v-cataldo-nyappdiv-2017.

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