Summary
rejecting argument that plaintiffs' fiduciary duty claims were barred by the parties' releases
Summary of this case from Hoffmann v. Major Model Mgmt.Opinion
03-24-2016
Douglas BERLIN, etc., Plaintiff–Respondent, v. Thomas JAKOBSON, et al., Defendants–Appellants.
Emery Celli Brinckerhoff & Abady LLP, New York (Zoe A. Salzman of counsel), for appellants. Wrobel Markham Schatz Kaye & Fox LLP, New York (David C. Wrobel of counsel), for respondent.
Emery Celli Brinckerhoff & Abady LLP, New York (Zoe A. Salzman of counsel), for appellants. Wrobel Markham Schatz Kaye & Fox LLP, New York (David C. Wrobel of counsel), for respondent.
Order, Supreme Court, New York County (Debra A. James, J.), entered December 8, 2015, which, to the extent appealed from, denied defendants' motion to dismiss the complaint in its entirety, unanimously modified, on the law, to dismiss the third cause of action insofar as asserted on behalf of 27–37 Management, to dismiss that part of the fourth cause of action as asserted on behalf of 27–37 Management for unjust enrichment, and to dismiss the fifth cause of action as to 27–37 Management, and otherwise affirmed, without costs.
The claim for breach of fiduciary duty, which described the relationship among the various companies and the role of defendants and identified a number of specific acts of misconduct, was pleaded with sufficient particularity (see Gall v. Summit, Rovins & Feldesman, 222 A.D.2d 225, 226, 635 N.Y.S.2d 17 [1st Dept.1995], lv. dismissed 88 N.Y.2d 919, 646 N.Y.S.2d 987, 670 N.E.2d 228 [1996] ; CPLR 3016[b] ). However, plaintiff's failure to identify any damages sustained by 27–37 Management requires dismissal of the fiduciary duty and unjust enrichment claims asserted on its behalf (see Coleman v. Fox Horan & Camerini, 274 A.D.2d 308, 309, 711 N.Y.S.2d 723 [1st Dept.2000], lv. denied 95 N.Y.2d 767, 717 N.Y.S.2d 547, 740 N.E.2d 653 [2000] ; Georgia Malone & Co., Inc. v. Rieder, 19 N.Y.3d 511, 516, 950 N.Y.S.2d 333, 973 N.E.2d 743 [2012] ). The dismissal of the fiduciary claim as to 27–37 Management also warrants dismissal of the accounting claim as to that defendant.
While defendants assert certain releases as a bar to the fiduciary duty claims asserted on behalf of Waverly Properties and 27–37 Management for the first time on appeal, we can consider the argument because it cannot be avoided, turns on a question of law, and can be resolved on the face of the record (Rojas–Wassil v. Villalona, 114 A.D.3d 517, 517, 981 N.Y.S.2d 388 [1st Dept.2014] ). However, given the narrow construction to be given a release, we conclude that these claims are not barred by the releases (see Lexington Ins. Co. v. Combustion Eng'g, 264 A.D.2d 319, 322, 693 N.Y.S.2d 146 [1st Dept1999] ).
MAZZARELLI, J.P., MANZANET–DANIELS, KAPNICK, WEBBER, JJ., concur.