Case Information

EPSTEIN ENGINEERING, P.C., Appellant, v THOMAS CATALDO et al., Respondents.

Appellate Division of the Supreme Court of New York, First Department

March 28, 2017

148 AD3d 411

[51 NYS3d 395]

Order, Supreme Court, New York County (George J. Silver, J.), entered October 8, 2015, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the issue of liability on its second through fifth causes of action alleging breach of fiduciary duty and the duty of loyalty, unfair competition, conversion, and fraud, unanimously affirmed, without costs.

The motion court properly denied plaintiff's motion for summary judgment on its second cause of action for breach of the fiduciary duty of loyalty. Even assuming that plaintiff has established that defendants were disloyal in operating a competing business while employed by plaintiff, plaintiff has failed to establish that defendants usurped any corporate opportunity, by showing that it was seeking any of defendants' allegedly competing projects, or that its survival was jeopardized by its failure to acquire any of those projects (see Lee v Manchester Real Estate & Constr., LLC, 118 AD3d 627, 628 [1st Dept 2014]; Alexander & Alexander of N.Y. v Fritzen, 147 AD2d 241, 246-247 [1st Dept 1989]).

In light of plaintiff's argument that defendants' "disloyal conduct also requires findings of liability for [plaintiff's] other causes of action," and since plaintiff does not posit any independent damages for any of those claims, summary judgment was also properly denied as to plaintiff's remaining claims for unfair competition, conversion, and fraud (see e.g. Perez v Violence Intervention Program, 116 AD3d 601, 602 [1st Dept 2014], lv denied 25 NY3d 915 [2015]). In any event, plaintiff failed to establish entitlement to summary judgment as to any of those claims.

We have considered plaintiff's remaining contentions, and find them unavailing. Concur—Sweeny, J.P., Mazzarelli, Moskowitz and Kahn, JJ.

The Decision and Order of this Court entered herein on March 28, 2017 (148 AD3d 600 [2017]) is hereby recalled and vacated (see 2017 NY Slip Op 72494[U] [2017] [decided simultaneously herewith]).