Muhl v. Fraser

247 A.D.2d 224, 668 N.Y.S.2d 357, 1998 N.Y. App. Div. LEXIS 917

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 1998
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Beatrice Shainswit, J.), entered November 6, 1996, dismissing the complaint, unanimously affirmed, without costs.

In this action by the liquidator to recover damages against, inter alia, the directors, officers and managing agent of an insolvent insurer for breach of fiduciary duty, negligence and waste, the trial court properly directed a verdict in defendants’ favor (Curiale v Peat, Marwick, Mitchell & Co., 214 AD2d 16, 27) because of failures of proof as to the standard of care, deviation therefrom, damages and proximate cause. Under the circumstances, the statutory presumption of fraud (Insurance Law § 1219) was irrelevant and we further note the liquidator’s failure to mention it at trial. The trial court’s evidentiary rulings were appropriate exercises of discretion (see, Radosh v Shipstad, 20 NY2d 504, 508). We have considered appellant’s other contentions and find them to be without merit.

Concur— Milonas, J. P., Rosenberger, Ellerin and Tom, JJ.