| Huang v Sy |
| 2009 NY Slip Op 03694 [62 AD3d 660] |
| May 5, 2009 |
| Appellate Division, Second Department |
| Steven Huang et al., Respondents-Appellants, v Fabian A.Sy et al., Appellants-Respondents. |
—[*1] Feng Li, Yonkers, N.Y., for respondents-appellants.
In an action, inter alia, to recover damages for fraud and breach of fiduciary duty, thedefendants appeal from a judgment of the Supreme Court, Queens County (Weiss, J.), enteredMarch 24, 2008, which, upon a decision of the same court dated February 28, 2008, made after anonjury trial, is in favor of the plaintiffs and against them in the principal sum of $1,332,471,with interest thereon from September 1, 1990, and the plaintiffs cross-appeal, as limited by theirbrief, from so much of the same judgment as failed to award them damages for lost opportunitiesfor profit and punitive damages.
Ordered that the judgment is affirmed, without costs or disbursements.
Where a matter is tried without a jury, the authority of this Court on appeal "is as broad asthat of the trial court . . . and . . . as to a bench trial [we] may renderthe judgment [we] find[ ] warranted by the facts, taking into account in a close case the fact thatthe trial judge had the advantage of seeing the witnesses" (Northern Westchester ProfessionalPark Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983] [citations omitted]; see Praimnath v Torres, 59 AD3d419 [2009]). The trial court's verdict in favor of the plaintiffs on their causes of action torecover damages for fraud and breach of fiduciary duty was warranted by the facts adduced attrial, including evidence demonstrating that the defendant Fabian Sy made payments to himself,and to the defendants FAS Development Co., Inc., and 225 Associates, entities under his solecontrol, from funds belonging to the partnerships of which the plaintiffs were members, withoutauthorization from the other partners and in contravention of the relevant partnershipagreements. Accordingly, there is no basis to disturb the Supreme Court's determination in favorof the plaintiffs (see Dubbs v Stribling & [*2]Assoc., 96NY2d 337, 340 [2001]; Birnbaum v Birnbaum, 73 NY2d 461, 465 [1989]; Levy vLeavitt, 257 NY 461, 467 [1931]; Apollo H.V.A.C. Corp. v Halpern Constr., Inc., 55 AD3d 855, 857[2008]; Miele v American TobaccoCo., 2 AD3d 799, 803 [2003]).
The Supreme Court properly awarded pre-verdict interest as a matter of right pursuant toCPLR 5001 (a) upon the principal sum awarded in connection with the plaintiffs' causes ofaction to recover damages for fraud and breach of fiduciary duty (see CPLR 5001 [a];Cohen v Gordon, 297 AD2d 272, 274 [2002]; Eighteen Holding Corp. v Drizin,268 AD2d 371, 372 [2000]; see generally State Div. of Human Rights v New York StateDept. of Correctional Servs., 90 AD2d 51, 59 n 3 [1982]; New England Ins. Co. vHealthcare Underwriters Mut. Ins. Co., 352 F3d 599, 603 [2003]). Contrary to thedefendants' contention, these causes of action sounded in law, rather than equity (cf. Anesthesia Assoc. of Mount Kisco,LLP v Northern Westchester Hosp. Ctr., 59 AD3d 481 [2009]; Moser v Devine Real Estate, Inc.[Florida], 42 AD3d 731, 737 [2007]; Miller v Doniger, 293 AD2d 282 [2002];R.C.P.S. Assoc. v Karam Devs., 213 AD2d 612, 614 [1995]).
The plaintiffs' contention that they are entitled to a new trial on the issue of damages becausethe Supreme Court precluded the testimony of an expert witness as to alleged lost opportunitiesfor profit caused by the defendants' conduct, is not properly before this Court, as their argumentsregarding compliance with the notice requirements of CPLR 3101 (d) are raised for the first timeon appeal in the plaintiffs' reply brief (see Sarva v Chakravorty, 34 AD3d 438, 439 [2006]; Sandovalv Juodzevich, 293 AD2d 595 [2002]).
Contrary to the plaintiffs' contention, the Supreme Court did not improvidently exercise itsdiscretion in declining to award punitive damages, as the plaintiffs failed to establish that thedefendants' conduct " 'evince[d] a high degree of moral turpitude and demonstrate[d] suchwanton dishonesty as to imply a criminal indifference to civil obligations' " (Ross v Louise Wise Servs., Inc., 8NY3d 478, 489 [2007], quoting Walker v Sheldon, 10 NY2d 401, 405 [1961]; see Outside Connection, Inc. vDiGennaro, 18 AD3d 634 [2005]).
The defendants' remaining contentions are without merit. Mastro, J.P., Dillon, Covello andDickerson, JJ., concur. [See 18 Misc 3d 1141(A), 2008 NY Slip Op 50391(U).]