Opinion
April 19, 1996
Appeal from the Supreme Court, Nassau County, Murphy, J.
Present — Pine, J.P., Fallon, Callahan, Balio and Davis, JJ.
Order insofar as appealed from unanimously reversed on the law without costs and motion granted. Memorandum: Plaintiff contends that the order on appeal should be reversed insofar as it denied his motion for partial summary judgment on liability on the sixth cause of action of the complaint, which seeks damages for breach of fiduciary duty and duty of loyalty owed by defendant as an employee of plaintiff. We agree ( see, Lamdin v. Broadway Surface Adv. Corp., 272 N.Y. 133, 138; see also, Feiger v. Iral Jewelry, 41 N.Y.2d 928; Henderson v. Rep Tech, 162 A.D.2d 1028). Based upon her criminal conviction of grand larceny in the second degree, Emily Seoane (defendant) is collaterally estopped from relitigating the issue of her liability ( see, Kaufman v. Eli Lilly Co., 65 N.Y.2d 449, 455). Under the circumstances of this case, we conclude that defendant's criminal conviction is conclusive proof of the allegations in the sixth cause of action ( see generally, Kramer v. Griffin, 156 A.D.2d 973). Therefore, all compensation and expenses that plaintiff paid to defendant during the periods of her criminal activity, disloyalty and breach of fiduciary duty are "component[s] of the profit for which [she] must account and [are] subject to forfeiture" ( Henderson v. Rep Tech, supra, at 1028).