Schwartz v. Winslow & Co. LLC

2024 NY Slip Op 34328(U)

• Court: New York Supreme Court, New York County
• Decided: December 9, 2024
• Docket: Index No. 651460/2018
• Status: Unpublished

Opinion

Schwartz v Winslow & Co. LLC 2024 NY Slip Op 34328(U) December 9, 2024 Supreme Court, New York County Docket Number: Index No. 651460/2018 Judge: Andrew Borrok Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 12/09/2024 10:52 AM INDEX NO. 651460/2018 NYSCEF DOC. NO. 588 RECEIVED NYSCEF: 12/09/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 53 -----------------------------------------------------------------------------------X DANIEL L. SCHWARTZ, INDEX NO. 651460/2018

Plaintiff, MOTION DATE 11/15/2023 -v- MOTION SEQ. NO. 012 WINSLOW & COMPANY LLC,W & CO REAL ESTATE LLC,WAYNE JOSHUA WINSLOW, ILONA WINSLOW, DLS COMMERCIAL REAL ESTATE LLC DECISION + ORDER ON MOTION Defendant. -----------------------------------------------------------------------------------X

HON. ANDREW BORROK:

The following e-filed documents, listed by NYSCEF document number (Motion 012) 540, 541, 542, 543, 544, 545, 546, 547, 548, 549, 550, 551, 552, 553, 554, 555, 556, 557, 558, 559, 560, 561, 562, 563, 564, 565, 566, 567, 568, 574, 575, 576, 577, 578, 579, 580, 581, 582, 583, 584, 585, 586, 587 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER .

Upon the foregoing documents and for the reasons set forth on the record (tr. 12.6.24), there are

no issues of fact warranting trial as to Winslow & Company LLC (Winslow)’s claim sounding in

unjust enrichment or Daniel Schwartz’s motion seeking dismissal of Winslow’s claim that he

was a faithless fiduciary.

To state a cause of action for unjust enrichment, a plaintiff must allege “that (1) the other party

was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscious to

permit [the other party] to retain what is sought to be recovered” (Mandarin Trading Ltd. v

Wildenstein, 16 NY3d 173, 182 [2011] [internal quotation marks omitted]).

Simply put, it is undisputed that Daniel Schwartz forged the relationship with Datadog while at

Winslow which culminated in a deal for the 44th floor. As a result, Mr. Winslow earned and was

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paid a commission of which Winslow has not received its contemplated share. It would be

against equity and good conscience to permit him to retain the portion of the commission to

which he never expected to be able to retain (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d

173, 182 [2011] [internal quotation marks omitted]). It simply is irrelevant that at the time of his

termination he was owed money or that the parties were still in negotiation for the 44th floor

because the July 2016 Agreement (NYSCEF Doc. No. 549) contemplated post-termination

reconciliation and the relationship contemplated a split in commission which Winslow never

received. The Datadog deal at issue closed within a short period of time after Mr. Schwartz’s

termination. Accordingly, Winslow is entitled to summary judgment against Mr. Schwartz on its

unjust enrichment cause of action.

Mr. Schwartz and DLS Commercial Real Estate LLC are however entitled to summary judgment

dismissal of Winslow’s faithless fiduciary cause of action. Under New York law, an employee’s

misbehavior warrants forfeiture of his compensation earned during the period of disloyalty where

either (1) the conduct “substantially violates the contract of service” or (2) the employee “acts

adversely to his employer in any part of the transaction, or omits to disclose any interest which

would naturally influence his conduct in dealing with the subject of the employment”

(Phansalkar v Andersen Weinroth & Co., L.P., 344 F3d 184, 202 [2d Cir 2003]).

Nothing in the record indicates that prior to the time that Mr. Schwartz was fired (i.e., February

16, 2018), that he substantially violated his contract, acted adversely to his employer or that he

omitted disclosure of an interest that would influence his conduct (see Phansalkar v Andersen

Weinroth & Co., L.P., 344 F3d 184, 202 [2d Cir 2003] [applying New York law]). Indeed,

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contrary to Winslow’s argument, the record evidence demonstrates that Mr. Schwartz sent out

emails on behalf of Winslow (albeit from other email domains) in attempting to facilitate a

transaction for the 44th floor with Datadog and never did anything at all with the intention of

cutting out Winslow (NYSCEF Doc. No. 558). The record before the Court also demonstrates

that it is also not correct that Winslow was unaware that a deal for the 44th floor was being

discussed with Mr. Schwartz at the time of his termination.

To be clear, the record before the Court also demonstrates that there was not a meeting of the

minds with Datadog for the 44th floor as of November 2017. Indeed, there was not even an

existing deal as of February 2018. As such, it is irrelevant that Mr. Schwartz at that time did not

provide the specifics of his lack of procuring a deal at that moment. Thus, there are no issues of

fact as to whether Mr. Schwartz was not a faithless servant, and the claim is dismissed.

Accordingly, it is hereby

ORDERED that the motion and cross-motion for summary judgment are granted to the extent set

forth above; and it is further

ORDERED that Winslow shall submit judgment on notice for the Court’s signature (sfc-

part53@nycourts.gov), and if Mr. Schwarz is disagrees with the proposed judgment, then he may

submit a proposed counter-judgment.

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12/9/2024 DATE ANDREW BORROK, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

□ □ GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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