Finkelstein v. Warner Music Group Inc.

787 N.Y.S.2d 867 | N.Y. App. Div. | 2005

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered October 31, 2003, which, to the extent appealed from, granted so much of defendants’ motion to dismiss the second cause of action as against defendant Warner Music Group and portions of that cause of action as against defendant The Rhythm Method Inc., but denied so much of that motion as sought dismissal of the first and ninth causes of action, unanimously modified, on the law, the motion denied with respect to so much of the second and ninth causes of action as allege breach of fiduciary duties after formation of the joint venture, and otherwise affirmed, without costs.

The allegations of a relationship of trust and confidence prior to the formation of the joint venture are factually unsupported, and thus, the claims for breach of fiduciary duty stemming from these allegations were properly dismissed. The claims for breach of fiduciary duties committed after formation of the joint venture were sufficiently supported. Moreover, parties are permitted to plead in the alternative (CPLR 3014), so that dismissal of these claims was premature at this stage of the litigation (see EBC I, Inc. v Goldman Sachs & Co., 7 AD3d 418, 420 [2004]). Concur—Buckley, P.J., Tom, Andrias, Marlow and Ellerin, JJ.