Opinion
05-04-2017
EPSTEIN ENGINEERING, P.C., Plaintiff–Appellant, v. Thomas CATALDO, et al., Defendants–Respondents.
Warshaw Burstein, LLP, New York (Bruce H. Wiener of counsel), for appellant. Jane M. Myers, P.C., Hauppauge (James E. Robinson of counsel), for Thomas Cataldo and Cataldo Engineering, P.C., respondents. Ira Daniel Tokayer, New York, for Steve Gregorio, respondent.
Warshaw Burstein, LLP, New York (Bruce H. Wiener of counsel), for appellant.Jane M. Myers, P.C., Hauppauge (James E. Robinson of counsel), for Thomas Cataldo and Cataldo Engineering, P.C., respondents.
Ira Daniel Tokayer, New York, for Steve Gregorio, respondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered October 8, 2015, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the issue of liability on its second through fifth causes of action alleging breach of fiduciary duty and the duty of loyalty, unfair competition, conversion, and fraud, unanimously affirmed, without costs.
The motion court properly denied plaintiff's motion for summary judgment on its second cause of action for breach of the fiduciary duty of loyalty. Even assuming that plaintiff has established that defendants were disloyal in operating a competing business while employed by plaintiff, plaintiff has failed to establish that defendants usurped any corporate opportunity, by showing that it was seeking any of defendants' allegedly competing projects, or that its survival was jeopardized by its failure to acquire any of those projects (see Lee v. Manchester Real Estate & Constr., LLC, 118 A.D.3d 627, 628, 988 N.Y.S.2d 620 [1st Dept.2014] ; Alexander & Alexander of N.Y. v. Fritzen, 147 A.D.2d 241, 246–247, 542 N.Y.S.2d 530 [1st Dept. 1989] ).
In light of plaintiff's argument that defendants' "disloyal conduct also requires findings of liability for [plaintiff's] other causes of action," and since plaintiff does not posit any independent damages for any of those claims, summary judgment was also properly denied as to plaintiff's remaining claims for unfair competition, conversion, and fraud (see e.g. Perez v. Violence Intervention Program, 116 A.D.3d 601, 602, 984 N.Y.S.2d 348 [1st Dept.2014], lv. denied 25 N.Y.3d 915, 2015 WL 5037593 [2015] ). In any event, plaintiff failed to establish entitlement to summary judgment as to any of those claims.
We have considered plaintiff's remaining contentions, and find them unavailing.
SWEENY, J.P., MAZZARELLI, MOSKOWITZ, KAHN, JJ., concur.