Genger v. Genger

2017 NY Slip Op 923, 147 A.D.3d 443, 46 N.Y.S.3d 413

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2017
• Docket: 3001 109749/09
• Status: Published

Opinion

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered April 12, 2016, which granted plaintiff’s motion for partial summary judgment, and denied defendants-appellants’ cross motion for summary judgment, unanimously affirmed, with costs.

Plaintiff is entitled to summary judgment on the breach of fiduciary duty cause of action (Pokoik v Pokoik, 115 AD3d 428, 429 [1st Dept 2014]). The evidence demonstrates that the subject transaction, in which defendant Sagi Genger was on both sides, was not “entirely fair” under Delaware law (Cambridge Capital Real Estate Invs., LLC v Archstone Enter. LP, 137 AD3d 593, 595 [1st Dept 2016]; R2 Invs., LDC v Icahn, 117 AD3d 632, 633 [1st Dept 2014]).

Plaintiff made a prima facie showing that the UCC sale of the TPR shares was not commercially reasonable (UCC 9-610), and defendants failed to raise an issue of fact.

The motion court’s grant of summary judgment to plaintiff on the replevin cause of action was appropriate, notwithstanding that the court directed that the value of the shares would be awarded rather than ordering the return of the shares (CPLR 7108 [a]).

We have considered defendants’ remaining contentions and find them unavailing.

Concur — Tom, J.P., Renwick, Saxe and Gesmer, JJ.