| Fitzpatrick House III, LLC v Neighborhood Youth & Family Servs. |
| 2008 NY Slip Op 07861 [55 AD3d 664] |
| October 14, 2008 |
| Appellate Division, Second Department |
| Fitzpatrick House III, LLC, Appellant, v Neighborhood Youth& Family Services, Respondent, et al., Defendants. |
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In an action, inter alia, to recover damages for conversion and breach of fiduciary duty, the plaintiffappeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered August 8,2007, which denied its motion for summary judgment on the fifth and sixth causes of action and todismiss the third counterclaim of the defendant Neighborhood Youth & Family Services.
Ordered that the order is affirmed, without costs or disbursements.
The plaintiff and the defendant Neighborhood Youth & Family Services (hereinafter NYFS)entered into a management agreement under which NYFS would serve as the exclusive managing agentfor a low-income residential apartment building owned by the plaintiff. The plaintiff terminated themanagement agreement in February 2007 and subsequently commenced this action, alleging that NYFShad improperly withdrawn funds from the building account.
The plaintiff moved for summary judgment on its causes of action seeking damages for conversionand breach of contract, and to dismiss the counterclaim of NYFS seeking damages for breach ofcontract. The Supreme Court denied the plaintiff's motion, finding that the conflicting affidavitssubmitted by the parties created triable issues of fact. We affirm.
"In order to establish a breach of fiduciary duty, a plaintiff must prove the existence of a fiduciaryrelationship, misconduct by the defendant, and damages that were directly caused by the defendant'smisconduct" (Kurtzman v Bergstol, 40AD3d 588, 590 [2007]). In order to establish a conversion claim, a plaintiff must show that he had"an immediate superior right of possession to [*2]the identifiable fundand the exercise by defendants of unauthorized dominion over the money in question to the exclusion ofplaintiff's rights" (Bankers Trust Co. v Cerrato, Sweeney, Cohn, Stahl & Vaccaro, 187 AD2d384, 385 [1992]).
Here, the plaintiff established its prima facie entitlement to judgment as a matter of law on its causesof action to recover damages for conversion and breach of fiduciary duty by submitting the affidavit ofits managing member and financial documentation showing multiple withdrawals from the buildingaccount (see generally Zuckerman v City of New York, 49 NY2d 557 [1980]). However,affidavits submitted by NYFS, as well as the management agreement itself, raise triable issues of fact asto whether the transactions at issue were authorized under the management agreement (see Ptasznikv Schultz, 223 AD2d 695 [1996]; Heller v Hicks Nurseries, 198 AD2d 330 [1993]).
The plaintiff's remaining contentions are without merit or need not be reached in light of ourdetermination. Spolzino, J.P., Florio, Miller and Leventhal, JJ., concur.