Opinion
8270– 8271 Index 655506/16
01-31-2019
Emmet AUSTIN, etc., et al., Plaintiffs–Appellants, v. Jonathan GOULD, et al., Defendants–Respondents.
Law Office of Edward J. Boyle, Manhasset (Edward J. Boyle of counsel), for appellants. Westerman Ball Ederer Miller Zucker & Sharfstein, LLP, Uniondale (Greg S. Zucker of counsel), for respondents.
Law Office of Edward J. Boyle, Manhasset (Edward J. Boyle of counsel), for appellants.
Westerman Ball Ederer Miller Zucker & Sharfstein, LLP, Uniondale (Greg S. Zucker of counsel), for respondents.
Richter, J.P., Manzanet–Daniels, Tom, Kahn, JJ.
Orders, Supreme Court, New York County (O. Peter Sherwood, J.), entered December 14, 2017, and July 13, 2017, which granted defendants' motions to dismiss the complaint, unanimously affirmed, without costs.
The first two causes of action seek to compel access to and examination of the Managing LLCs' and the Retail Partners' books and records. Defendant Gould, the managing member of the named Managing LLCs, properly determined that there was no "valid business purpose," as required by the Managing LLCs' operating agreements, for inspecting the Managing LLC's books and records, because plaintiff Austin's purpose for inspecting related to claims for acquisition fees and management fees that had already been dismissed in a 2013 action (see Austin v. Gould, 137 A.D.3d 495, 27 N.Y.S.3d 19 [1st Dept. 2016] ).
The third cause of action, which alleges breach of fiduciary duty against Gould, was correctly dismissed, because it mixes an individual claim with a derivative claim (see Dian Kui Su v. Sing Ming Chao, 150 A.D.3d 424, 425, 51 N.Y.S.3d 407 [1st Dept. 2017], citing Abrams v. Donati, 66 N.Y.2d 951, 498 N.Y.S.2d 782, 489 N.E.2d 751 [1985] ).
The fourth cause of action, which alleges that Gould transferred Austin's interest in Stonemar MM Jackson, LLC, to his (Gould's) wife without consideration or consent, was correctly dismissed, because "[t]he conversion of intangible property is not actionable" ( Sun Gold, Corp. v. Stillman, 95 A.D.3d 668, 669, 946 N.Y.S.2d 24 [1st Dept. 2012] ).
In view of the foregoing, the fifth cause of action, which seeks legal, accounting, and expert fees, is moot.