Opinion
2012-12-5
PROHEALTH CARE ASSOCIATES, LLP, appellant-respondent, v. Henry K. PRINCE, etc., et al., defendants-respondents, Emily S. Brooks, respondent-appellant.
Garfunkel Wild, P.C., Great Neck, N.Y. (Roy W. Breitenbach, Kevin G. Donoghue, and Theresa A. Harris of counsel), for appellant-respondent. Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great Neck, N.Y. (John M. Brickman and Andrew J. Luskin of counsel), for defendants-respondents and respondent-appellant.
Garfunkel Wild, P.C., Great Neck, N.Y. (Roy W. Breitenbach, Kevin G. Donoghue, and Theresa A. Harris of counsel), for appellant-respondent. Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great Neck, N.Y. (John M. Brickman and Andrew J. Luskin of counsel), for defendants-respondents and respondent-appellant.
ANITA R. FLORIO, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
In an action, inter alia, to recover damages for breach of fiduciary duty, the plaintiff appeals (1) from a decision of the Supreme Court, Nassau County (McCarty III, J.), entered December 23, 2010, made after a nonjury trial, (2), as limited by its brief, from so much of an order of the same court entered February 28, 2011, as denied its motion pursuant to CPLR 4404(b) to set aside so much of the decision as found that the cause of action to recover damages for breach of fiduciary duty must be dismissed and that the defendant Emily S. Brooks was entitled to an award of severance compensation pursuant to the parties' partnership agreement, and (3), as limited by its brief, from so much of a judgment of the same court entered March 11, 2011, as, upon the decision and the order, is in favor of the defendant Emily S. Brooks and against it on her counterclaim in the principal sum of $60,645.15 and dismissing the cause of action to recover damages for breach of fiduciary duty, and the defendant Emily S. Brooks cross-appeals, as limited by her brief, from so much of the same judgment as, upon the decision, and upon, in effect, so much of the order as denied that branch of her motion, made jointly with the defendant Henry K. Prince, which was pursuant to CPLR 4404(b) to set aside so much of the decision as found that she was not entitled to an award of an attorney's fee, is in favor of the plaintiff and against her dismissing her counterclaim for an award of an attorney's fee pursuant to the parties' partnership agreement.
ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision ( see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 509–510, 472 N.Y.S.2d 718); and it is further,
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed insofar as appealed from; and it is further,
ORDERED that the judgment is reversed insofar as cross-appealed from, on the law, that branch of the motion of the defendant Emily S. Brooks, made jointly with the defendant Henry K. Prince, which was pursuant to CPLR 4404(b) to set aside so much of the decision as found that the defendant Emily S. Brooks was not entitled to an award of an attorney's fee is granted, the order entered February 28, 2011, is modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for a determination of the amount of the attorney's fee to be awarded and for the entry thereafter of an appropriate amended judgment; and it is further,
ORDERED that one bill of costs is awarded to the defendant Emily S. Brooks, payable by the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( seeCPLR 5501[a] [1] ).
On an appeal from a judgment entered after a nonjury trial, the power of this Court “ ‘to review the evidence is as broad as that of the trial court, bearing in mind ... that due regard must be given to the decision of the Trial Judge who was in a position to assess the evidence and the credibility of the witnesses' ” ( Tornheim v. Kohn, 31 A.D.3d 748, 748, 818 N.Y.S.2d 491, quoting Universal Leasing Servs. v. Flushing Hae Kwan Rest., 169 A.D.2d 829, 830, 565 N.Y.S.2d 199;see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809).
The Supreme Court's determinations, inter alia, that the plaintiff failed to meet its burden of establishing that the defendant Emily S. Brooks breached a fiduciary duty, and that she was entitled to severance compensation pursuant to the terms of the parties' partnership agreement, were warranted by the facts ( see ProHealth Care Assoc., LLP v. Shapiro, 46 A.D.3d 792, 793, 849 N.Y.S.2d 276; Greenberg v. Joffee, 34 A.D.3d 426, 427, 824 N.Y.S.2d 355;ProHealth Care Assoc., LLP. v. April, 4 Misc.3d 1017[A], 2004 N.Y. Slip Op. 50919[U], 2004 WL 1872915 [Sup. Ct., Nassau County];see also Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d at 499, 470 N.Y.S.2d 350, 458 N.E.2d 809;Tornheim v. Kohn, 31 A.D.3d 748, 818 N.Y.S.2d 491;cf. Graubard Mollen Dannett & Horowitz v. Moskovitz, 86 N.Y.2d 112, 118, 629 N.Y.S.2d 1009, 653 N.E.2d 1179;Bronx–Lebanon Hosp. Ctr. v. Wiznia, 284 A.D.2d 265, 265–266, 726 N.Y.S.2d 847;Gibbs v. Breed, Abbott & Morgan, 271 A.D.2d 180, 182–189, 710 N.Y.S.2d 578). We find no reason to disturb those determinations.
Moreover, the parties' partnership agreement provides that if any party thereto prevails in a judicial proceeding “concerning any provision of [the] agreement or the rights and duties of any person in relation thereto,” then that party is entitled to an award of a reasonable attorney's fee. Contrary to the Supreme Court's determination, Brooks prevailed on all her claims and, therefore, she was entitled to an award of a reasonable attorney's fee ( see Hooper Assoc. v. AGS Computers, 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903;Mancheski v. GGCP, Inc., 41 A.D.3d 790, 791, 839 N.Y.S.2d 192;Village of Hempstead v. Taliercio, 8 A.D.3d 476, 778 N.Y.S.2d 519;Fatsis v. 360 Clinton Ave. Tenants Corp., 272 A.D.2d 571, 709 N.Y.S.2d 421).
The plaintiff's remaining contention is without merit.