Summary
holding that a claim for breach of fiduciary duty lacks merit where it "fails to allege conduct by defendants in breach of a duty other than, and independent of, that contractually established between the parties and is thus duplicative."
Summary of this case from JTS Trading Ltd. v. Trinity White City Ventures Ltd.Opinion
3157.
Decided March 18, 2004.
Order, Supreme Court, New York County (Richard Lowe, III, J.), entered July 25, 2003, which, to the extent appealed from as limited by the briefs, granted defendants' motion pursuant to CPLR 3211(a)(1) and (7) insofar as to dismiss the second cause of action, for breach of fiduciary duty, but denied the motion with respect to the first cause of action, for breach of contract, unanimously affirmed, with costs.
Martin I. Kaminsky, for Plaintiffs-Respondents-Appellants.
Philippe M. Salomon, for Defendants-Appellants-Respondents.
Before: Nardelli, J.P., Mazzarelli, Friedman, Gonzalez, JJ.
The denial of defendants' motion with respect to plaintiffs' cause of action for breach of contract was correct since the verified complaint, particularly as amplified by plaintiff Gary Kaminsky's affidavit and the pertinent language of the subject partnership agreement, discloses that plaintiffs have a valid claim for breach of contract, and the documentary evidence proffered by defendants failed to establish conclusively that plaintiffs breached provisions of the partnership agreement and have thus forfeited rights to payments of partnership distributions ( see Leon v. Martinez, 84 N.Y.2d 83, 87-88).
Plaintiffs' cross appeal seeking reinstatement of their claim for breach of fiduciary duty lacks merit. Their claim for breach of fiduciary duty fails to allege conduct by defendants in breach of a duty other than, and independent of, that contractually established between the parties and is thus duplicative ( see William Kaufman Org., Ltd. v. Graham James LLP, 269 A.D.2d 171, 173).
We have considered the parties' remaining arguments for affirmative relief and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.