| N.Y. App. Div. | Nov 26, 2001
—In an action to recover money owed pursuant to the terms of a joint venture agreement, the defendants Escudo Construction Corp. and Maria Fernandes appeal from a judgment of the Supreme Court, Suffolk County (Costello, J.), entered September 28, 2000, which, after a nonjury trial, is in favor of the plaintiff and against them in the principal sum of $25,000.
Ordered that the judgment is modified by deleting the provision thereof awarding the principal sum of $25,000 and substituting therefor a provision awarding the principal sum of $23,290; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme
There were sufficient facts on the record to support a finding that the appellants breached the fiduciary duty owed the plaintiff as their partner in an ongoing joint venture, even though the plaintiff’s complaint asserted a cause of action sounding in fraud and not breach of fiduciary duty (see, Diemer v Diemer, 8 NY2d 206, 212).
Nevertheless, the court erred in awarding the plaintiff the sum of $25,000, based upon a determination that the appellants’ expenses were $7,500. Instead, the evidence shows that these expenses totalled $9,210, $1,710 more than the amount calculated by the Supreme Court. Consequently, the award to the plaintiff must be reduced by $1,710.
The appellants’ remaining contentions are either unpreserved for appellate review or without merit. Santucci, J. P., McGinity, Luciano and Adams, JJ., concur.