Opinion
5603
December 13, 2001.
Order, Supreme Court, New York County (Barry Cozier, J.), entered on or about April 3, 2000, which, inter alia, granted the motion of third-party interpleaded defendants-respondents for summary judgment on their cross claims for conversion, breach of contract, breach of fiduciary duty, for an accounting and for a declaration that Vishipco Lines and Dai Nam Hang Hai Congty Vishipco Line of Vietnam are the lawful owners of the interpleaded funds, and dismissing all cross claims against them, unanimously affirmed, with costs.
Steven A. Hershkowitz, for plaintiff-appellant.
David M. Levy, for third-party interpleaded defendants-respondents.
Before: Wallach, J.P., Lerner, Rubin, Buckley, Friedman, JJ.
The motion court correctly found that the third-party interpleaded defendants had established that there was no question of fact that, at the time plaintiff, who had been retained by them to act as their fiduciary, transferred part of the interpleaded funds from accounts in their names into accounts in his own name, and when, while still purporting to act as their fiduciary, he later attempted to transfer the remainder of those funds, he had no ownership interest in the funds. Plaintiff's contention that the purpose of the subject transfer and attempted transfer was simply to protect the funds from possible claims by the Vietnamese government, was conclusively belied by the inaccurate information he contemporaneously supplied to the third-party interpleaded defendants-respondents, including false information as to the balances of the accounts involved.
Since, in view of the foregoing, it is clear as a matter of law, that plaintiff breached his fiduciary obligations to his principals, the third-party interpleaded defendants, the motion court properly found that plaintiff was not entitled to any portion of the disputed funds as a commission (see, Bon Temps Agency, Ltd. v. Greenfield, 184 A.D.2d 280,lv dismissed 81 N.Y.2d 759).
Finally, we reject plaintiff's argument at this time that the claim of the Vietnamese government and Vitranschart, Inc., nonparties to this litigation, to ownership of third-party interpleaded defendant Vishipco Lines and all of its assets, has relevance to this appeal, which solely involves plaintiff's contention that his claim to the disputed funds is superior to that of the third-party interpleaded defendants.
Motion seeking leave to intervene and for other related relief denied without prejudice to further proceedings in Supreme Court, New York County.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.