Kramer v Danalis

Kramer v Danalis 2012 NY Slip Op 01122 Decided on February 14, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 14, 2012
Mazzarelli, J.P., Saxe, Moskowitz, Freedman, Manzanet-Daniels, JJ.
6798 101978/05

[*1]Ari Kramer, etc., Plaintiff-Appellant,

v

Ioannis Danalis, Defendant-Respondent.




Haynes & Boone, LLP, New York (Kenneth J. Rubinstein of
counsel), for appellant.
Schillinger & Finsterwald, LLP, White Plains (Peter
Schillinger of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 16, 2011, which granted defendant's motion for summary judgment dismissing the causes of action for breach of fiduciary duty, conversion, constructive trust, unjust enrichment and breach of contract, unanimously reversed, on the law, with costs, and the motion denied.

The general assertions by defendant's and Irving Bush's accountant that, in his review of the general ledgers and banking records, he observed no financial irregularities or unfair conduct by defendant, is insufficient to demonstrate defendant's entitlement to judgment dismissing the specific claims alleged. Thus, plaintiff's obligation to raise an issue of fact in opposition never arose.

We note that the law of the case doctrine has no bearing on the allegations of self-dealing, which are separate from the claim resolved on the prior appeal by our finding that there was no issue of fact as to the existence of a confidential or fiduciary relationship with regard to a 2002 agreement (66 AD3d 539 [2009]). We also note that discovery has not yet been completed.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 14, 2012

CLERK