973 N.Y.S.2d 774 | N.Y. App. Div. | 2013
In an action, inter alia, to recover damages for breach of fiduciary duty, the plaintiff appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated May 7, 2012, which granted that branch of the cross motion of the defendant James Zacharakos which was for summary judgment dismissing the complaint insofar as asserted against him.
Ordered that the order is affirmed, with costs.
The plaintiff thereafter commenced this action, contending that Zacharakos, as a director, officer, shareholder, and managing agent of the corporation, owed a fiduciary duty to him with regard to the purchase of Kristiansen’s shares. The complaint alleged that Zacharakos breached this fiduciary duty by precluding the plaintiff from purchasing a pro rata share of Kristiansen’s stock. In the order appealed from, the Supreme Court granted that branch of Zacharakos’s cross motion which was for summary judgment dismissing the complaint insofar as asserted against him
“The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant’s misconduct” (Rut v Young Adult Inst. Inc., 74 AD3d 776, 777 [2010]; see Faith Assembly v Titledge of N.Y. Abstract, LLC, 106 AD3d 47, 61 [2013]; Armentano v Taraco Gas Corp., 90 AD3d 683, 684 [2011]). “A fiduciary relationship exists between two persons when one of them is under a duty to act for . . . the benefit of another upon matters within the scope of the relation” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005] [internal quotation marks omitted]; see Faith Assembly v Titledge of N.Y. Abstract, LLC, 106 AD3d at 62).
Contrary to the plaintiffs contention, Zacharakos’s status as an officer, director, or shareholder of a close corporation “does
Accordingly, the Supreme Court properly granted that branch of Zacharakos’s motion which was for summary judgment dismissing the complaint insofar as asserted against him. Rivera, J.P., Sgroi, Cohen and Hinds-Radix, JJ., concur.