Michael Mangi & Son Agency, Inc. v Scott P. Mangi

Michael Mangi & Son Agency, Inc. v Mangi 2005 NY Slip Op 06103 [20 AD3d 554] July 25, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 21, 2005

Michael Mangi & Son Agency, Inc., Appellant,
v
Scott P. Mangi et al., Respondents.

—[*1]In a consolidated action, inter alia, to recover damages for breach of fiduciary duty, conversion, and breach of contract, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated August 26, 2004, which denied its motion for summary judgment and granted the cross motion of the defendant Compensation Risk Managers, LLC, for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with one bill of costs payable to the defendants.

Contrary to the plaintiff's contentions, the Supreme Court properly denied its motion for summary judgment. With respect to the defendant Compensation Risk Managers, LLC (hereinafter CRM), the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Although the plaintiff established its prima facie entitlement to judgment as a matter of law against the defendant Scott P. Mangi, in opposition, that defendant raised a triable issue of fact as to whether he breached his fiduciary duty to the [*2]plaintiff or usurped corporate opportunities (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Moreover, the Supreme Court properly granted the cross motion of CRM for summary judgment dismissing the complaint insofar as asserted against it. CRM established prima facie its entitlement to judgment as a matter of law and, in opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, supra). Adams, J.P., S. Miller, Ritter and Fisher, JJ., concur.