Summary
finding that where the parties shared a close working relationship, an accounting is appropriate to determine what assets are involved
Summary of this case from In re Bernard L. Madoff Inv. Sec. LlcOpinion
March 30, 1999
Appeal from the Supreme Court, New York County (Beverly Cohen, J.).
The motion court properly granted plaintiffs' motion for summary judgment on the second cause of action because the art work and proceeds from sold art work constitute trust property (Arts and Cultural Affairs Law § 12.01; see, Indemnity Ins. Co. v. Art Students League, 225 A.D.2d 398). The fact that the parties' written agreement entitled defendant International Images to be reimbursed for printing and other related costs did not alter the trust relationship, and did not create a security interest in the art work in favor of that defendant (Arts and Cultural Affairs Law § 12.01 [a] [v]; see, Zucker v. Hirschl Adler Galleries, 170 Misc.2d 426). Defendants' motion to renew was properly denied for failure to show that any of the purportedly new material was unavailable at the time of the original motion.
The motion court properly denied plaintiffs' motion for summary judgment on the remaining causes of action, except to the limited extent it corrected itself, upon plaintiffs' motion to reargue the June 4, 1998 order, by granting judgment, as to liability only, for breaches of fiduciary duty arising out of defendant Karla MacKay's secretion of prints to Florida, and defendants' failure to pay monies held in trust for plaintiffs on demand. Otherwise, plaintiffs' allegations were contradicted, and the motion court properly granted defendants' motion to amend their answer to add counterclaims for setoff, which counterclaims are another basis for denying plaintiffs' motion (see, Yoi-Lee Realty Corp. v. 177th St. Realty Assocs., 208 A.D.2d 185, 189-190). In addition, the motion court properly directed the parties to account to each other, since an accounting will help sort out what assets are involved, and will enable the parties to meaningfully pursue their respective claims concerning their prior business arrangement (see, Miske v. Berdon, 189 A.D.2d 594), which, as the court noted, most closely approximates a joint venture (compare, Amengual v. Demetroules, 167 A.D.2d 275, lv denied 77 N.Y.2d 803, with Village of Wellsville v. Village of Andover, 231 A.D.2d 870).
The motion court properly sanctioned plaintiffs' attorney for frivolous conduct in making the motion for leave to submit sur-sur-reply papers in support of plaintiffs' motion for summary judgment, since that conduct violated a prior, oral court directive that plaintiffs' attorney not submit further papers on the motion, the papers constituted further argument on matters already argued, and the motion was undertaken primarily to delay or prolong resolution of the litigation ( 22 NYCRR 130-1.1 [c] [1], [2]; see, Fern v. Brown, Harris, Stevens, 190 A.D.2d 515). The motion court also properly sanctioned plaintiffs for making the motion to reargue the same motion. Although plaintiffs prevailed to a limited extent upon reargument, the thrust of their motion, that no accounting was needed since defendants were not entitled to keep any share of the profits of the parties' business venture, was a rehash of the arguments that the court previously refused to entertain on their motion to submit sur-sur-reply papers, and was rejected.
We have considered the parties' other arguments for affirmative relief and find that they lack merit.
Concur — Sullivan, J. P., Nardelli, Williams and Andrias, JJ.
[See, 172 Misc.2d 247.]