Opinion
December 21, 1992
Appeal from the Supreme Court, Nassau County (Roberto, J.).
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The plaintiff Execulease Corp. (hereinafter Execulease) is engaged in the business of leasing and servicing office equipment. This action arises from the conduct of the defendants Mark Jacobs and Lucia Dente, former employees of Execulease, who allegedly misappropriated Execulease's trade secrets and customer lists. The complaint further alleges that the other named defendant Cavin Leasing Corp. (hereinafter Cavin), a competitor business that employed Jacobs as a salesman after he left Execulease, knowingly conspired and participated in the theft of customer lists and trade information. Cavin cross-moved, inter alia, for summary judgment dismissing the complaint, and requested sanctions against Execulease for bringing an "unfounded" suit against it.
The Supreme Court determined that a valid cause of action was pleaded in the complaint. However, it granted Cavin's motion for summary judgment dismissing the complaint because Execulease failed to raise a triable issue of fact indicating that Cavin participated in, advised, or directed Jacobs in the alleged perpetration of fraud against it. The court further declined to impose sanctions against Execulease.
The Supreme Court properly granted summary judgment in favor of Cavin. Execulease alleged that Jacobs and Dente had misappropriated customer lists compiled by it, and that Jacobs had used those lists in violation of his fiduciary obligations (see, Gilman Ciocia v Reid, 153 A.D.2d 878; Leo Silfen, Inc. v Cream, 29 N.Y.2d 387, 392-393). Where such a breach of fiduciary duty is established, third parties who have knowingly participated in the breach may be held accountable (see, Schneider Leasing Plus v Stallone, 172 A.D.2d 739; Marcus v Marcus, 92 A.D.2d 887). In the present case, while the complaint alleges that Cavin knowingly encouraged and participated in the purported breach of fiduciary duty committed by Jacobs and Dente, the material submitted by Execulease in opposition to the motion for summary judgment failed to raise a triable issue of fact indicating knowing participation of Cavin in Jacobs's and Dente's alleged improper conduct.
The imposition of sanctions against Execulease for bringing this action against Cavin is not warranted pursuant to 22 N.Y.CRR part 130. Thompson, J.P., Bracken, Lawrence and Miller, JJ., concur.