Summary
denying defendant's motion for summary judgment on claim for aiding and abetting fraud
Summary of this case from Economic Dev. v. Arthur Andersen Co.Opinion
May 24, 1994
Appeal from the Supreme Court, New York County (Shirley Fingerhood, J.).
In this action by a law firm alleging, inter alia, fraud, aiding and abetting fraud, breach of contract, aiding and abetting breach of contract, breach of fiduciary duty, and unjust enrichment in connection with defendants' withdrawal from the firm and alleged solicitation of major clients after executing and participating in a retirement program, the court properly refused to grant defendants summary judgment on the fraud claims based on allegations of fraudulent misrepresentation of present intent "`for the purpose of inducing another to act or refrain from action in reliance thereon in a business transaction'" (Channel Master Corp. v. Aluminium Ltd. Sales, 4 N.Y.2d 403, 407, quoting Restatement of Torts § 525, at 59). The court properly found the existence of a question of fact as to whether, at the time the retirement agreement was executed, defendant Moskovitz intended to use his best efforts to integrate his clients into plaintiff firm. The court also found sufficient evidence to preclude dismissal of the aiding and abetting claims against the other defendants. Further, questions of fact existed as to whether the preresignation communications with clients were actionable in violation of defendants' fiduciary duty to the firm if such resulted in solicitation of the clients for defendants' own benefit (see, Matter of Silverberg [Schwartz], 81 A.D.2d 640). The court also properly refused to strike certain deposition testimony, as comments claimed to be non-responsive were explanations of the ultimate answers. Finally, the court properly refused to award defendant Young summary judgment on his counterclaim to recover capital contributions as the opposing claim was for a substantially greater amount (Illinois McGraw Elec. Co. v. John J. Walters, Inc., 7 N.Y.2d 874). We have considered the other arguments and find them to be without merit.
Concur — Carro, J.P., Wallach, Asch, Nardelli and Williams, JJ.