New York Studios, Inc. v. Steiner Digital Studios

New York Studios, Inc. v Steiner Digital Studios (2017 NY Slip Op 04397)

New York Studios, Inc. v Steiner Digital Studios

2017 NY Slip Op 04397

Decided on June 6, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 6, 2017
Renwick, J.P., Richter, Feinman, Gische, Kahn, JJ.

4176 654351/12

[*1]New York Studios, Inc., et al., Plaintiffs-Respondents,

v

Steiner Digital Studios, et al., Defendants-Appellants.

Guazzo & Guazzo, New York (Delia M. Guazzo of counsel), for appellants.

Crawford Bringslid Vander Neut, LLP, Staten Island (Allyn J. Crawford of counsel), for respondents.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered on or about April 15, 2016, which, to the extent appealed from as limited by the briefs, denied defendants' motion to dismiss the causes of action for usurpation of corporate opportunities and an accounting, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.

The parties' operating agreement, which allows defendants to compete with plaintiff Eponymous Associates, LLC, does not flatly contradict plaintiffs' claim that defendants usurped Eponymous's corporate opportunities and assets (see CPLR 3211[a][1]; Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept 1999], affd 94 NY2d 659 [2000]; see also Leon v Martinez, 84 NY2d 83, 88 [1994]). However, the claim is not pleaded with the requisite particularity (see CPLR 3016[b]; Peacock v Herald Sq. Loft Corp., 67 AD3d 442, 443 [1st Dept 2009]).

In the absence of an allegation that plaintiffs demanded an accounting, the claim for an accounting fails to state a cause of action (see Unitel Telecard Distrib. Corp. v Nunez, 90 AD3d 568 [1st Dept 2011]; Adam v Cutner & Rathkopf, 238 AD2d 234, 241 [1st Dept 1997]; compare Kaufman v Cohen, 307 AD2d 113, 123-124 [1st Dept 2003]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 6, 2017

CLERK