Epstein Eng'g, P.C. v Cataldo

Epstein Eng'g, P.C. v Cataldo 2017 NY Slip Op 03593 Decided on May 4, 2017 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 May 4, 2017
Sweeny, J.P., Mazzarelli, Moskowitz, Kahn, JJ.
3358 603146/08

[*1]Epstein Engineering, P.C., Plaintiff-Appellant,

v

Thomas Cataldo, et al., Defendants-Respondents.

Warshaw Burstein, LLP, New York (Bruce H. Wiener of counsel), for appellant.

Jane M. Myers, P.C., Hauppauge (James E. Robinson of counsel), for Thomas Cataldo and Cataldo Engineering, P.C., respondents.

Ira Daniel Tokayer, New York, for Steve Gregorio, respondent.

Order, Supreme Court, New York County (George J. Silver, J.), entered October 8, 2015, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the issue of liability on its second through fifth causes of action alleging breach of fiduciary duty and the duty of loyalty, unfair competition, conversion, and fraud, unanimously affirmed, without costs.

The motion court properly denied plaintiff's motion for summary judgment on its second cause of action for breach of the fiduciary duty of loyalty. Even assuming that plaintiff has established that defendants were disloyal in operating a competing business while employed by plaintiff, plaintiff has failed to establish that defendants usurped any corporate opportunity, by showing that it was seeking any of defendants' allegedly competing projects, or that its survival was jeopardized by its failure to acquire any of those projects (see Lee v Manchester Real Estate & Constr., LLC, 118 AD3d 627, 628 [1st Dept 2014]; Alexander & Alexander of N.Y. v Fritzen, 147 AD2d 241, 246-247 [1st Dept 1989]).

In light of plaintiff's argument that defendants' "disloyal conduct also requires findings of liability for [plaintiff's] other causes of action," and since plaintiff does not posit any independent damages for any of those claims, summary judgment was also properly denied as to plaintiff's remaining claims for unfair competition, conversion, and fraud (see e.g. Perez v Violence Intervention Program, 116 AD3d 601, 602 [1st Dept 2014], lv denied 25 NY3d 915 [2015]). In any event, plaintiff failed to establish entitlement to summary judgment as to any of those claims.

We have considered plaintiff's remaining contentions, and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 4, 2017

CLERK