Berlin v. Jakobson

Berlin v Jakobson (2016 NY Slip Op 02175)

Berlin v Jakobson

2016 NY Slip Op 02175

Decided on March 24, 2016

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 March 24, 2016
Mazzarelli, J.P., Manzanet-Daniels, Kapnick, Webber, JJ.

621 152263/15

[*1]Douglas Berlin, etc., Plaintiff-Respondent,

v

Thomas Jakobson, et al., Defendants-Appellants.

Emery Celli Brinckerhoff & Abady LLP, New York (Zoe A. Salzman of counsel), for appellants.

Wrobel Markham Schatz Kaye & Fox LLP, New York (David C. Wrobel of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered December 8, 2015, which, to the extent appealed from, denied defendants' motion to dismiss the complaint in its entirety, unanimously modified, on the law, to dismiss the third cause of action insofar as asserted on behalf of 27-37 Management, to dismiss that part of the fourth cause of action as asserted on behalf of 27-37 Management for unjust enrichment, and to dismiss the fifth cause of action as to 27-37 Management, and otherwise affirmed, without costs.

The claim for breach of fiduciary duty, which described the relationship among the various companies and the role of defendants and identified a number of specific acts of misconduct, was pleaded with sufficient particularity (see Gall v Summit, Rovins & Feldesman, 222 AD2d 225, 226 [1st Dept 1995], lv dismissed 88 NY2d 919 [1996]; CPLR 3016 [b]). However, plaintiff's failure to identify any damages sustained by 27-37 Management requires dismissal of the fiduciary duty and unjust enrichment claims asserted on its behalf (see Coleman v Fox Horan & Camerini, 274 AD2d 308, 309 [1st Dept 2000], lv denied 95 NY2d 767 [2000]; Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 516 [2012]). The dismissal of the fiduciary claim as to 27-37 Management also warrants dismissal of the accounting claim as to that defendant.

While defendants assert certain releases as a bar to the fiduciary duty claims asserted on behalf of Waverly Properties and 27-37 Management for the first time on appeal, we can consider the argument because it cannot be avoided, turns on a question of law, and can be resolved on the face of the record (Rojas-Wassil v Villalona, 114 AD3d 517, 517 [1st Dept 2014]). However, given the narrow construction to be given a release, we conclude that these claims are not barred by the releases (see Lexington Ins. Co. v Combustion Eng'g, 264 AD2d 319, 322 [1st Dept 1999]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 24, 2016

CLERK