Aroesty v Farash Corp.

Aroesty v Farash Corp. 2010 NY Slip Op 09747 [79 AD3d 1763] December 30, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

Robert Aroesty, Appellant,
v
Farash Corporation et al., Respondents.

—[*1] Law Offices of James Morris, Buffalo (Willard M. Pottle, Jr., of counsel), for plaintiff-appellant.

Harter Secrest & Emery LLP, Rochester (F. Paul Greene of counsel), for defendants-respondents.

Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered October 1, 2009 in an action for wrongful termination of employment. The order, among other things, denied plaintiff's motion to strike defendant Farash Corporation's counterclaims.

It is hereby ordered that the order so appealed from is unanimously affirmed with costs.

Memorandum: Plaintiff commenced this action alleging, inter alia, that he was unlawfully terminated from his employment with defendants, and defendants asserted six counterclaims in their answer, including breach of fiduciary duty and unjust enrichment. Supreme Court properly denied that part of plaintiff's motion seeking dismissal of the counterclaims pursuant to CPLR 3211 (a) (5) inasmuch as plaintiff failed to meet his initial burden of establishing that any of the counterclaims is time-barred (see generally Morris v Gianelli, 71 AD3d 965, 967 [2010]). The court also properly denied that part of plaintiff's motion seeking dismissal of the counterclaims pursuant to CPLR 3211 (a) (7). Accepting as true the facts alleged in the counterclaims and in opposition to the motion, and according defendants the benefit of every possible favorable inference, we conclude that each counterclaim states a cause of action (see generally CPLR 3013; Jackal Holdings, LLC v JSS Holding Corp., 23 AD3d 435 [2005]). Present—Centra, J.P., Lindley, Sconiers, Green and Gorski, JJ.