| 37 Park Dr. S., Inc. v Duffy |
| 2009 NY Slip Op 05319 [63 AD3d 1040] |
| June 23, 2009 |
| Appellate Division, Second Department |
| 37 Park Drive South, Inc., Respondent-Appellant, v JamesP. Duffy, III, et al., Appellants-Respondents. |
—[*1] Richard L. Derzaw, New York, N.Y., for respondent-appellant.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal froma judgment of the Supreme Court, Westchester County (Scheinkman, J.), dated January 2, 2008,which, after a nonjury trial, is in favor of the plaintiff and against them, jointly and severally, inthe principal sum of $137,853, and the plaintiff cross-appeals from stated portions of thejudgment.
Ordered that the judgment is affirmed, without costs or disbursements.
In 1997, nonparty Robert Shamis, a British citizen who had been living in Hong Kong,wished to move to a house in Westchester County. To accomplish this, he was advised to form aNew York corporation to purchase the property, the sole shareholder of which would beCristoballo, LLC (hereinafter Cristoballo), a Costa Rican entity that was related to Shamis ormembers of his family. Cristoballo retained the defendant James P. Duffy, III and his law firm,the defendant Berg and Duffy, LLP (hereinafter Berg & Duffy), to form the corporation. It wasalso agreed that Duffy would serve as the corporation's president, and be responsible for certainministerial services such as making payments with respect to the renovation and operation of thehouse out of the corporation's bank account. The parties never executed any written agreement asto how the defendants would be compensated, but there was evidence at trial that the parties hadentered into an agreement whereby the defendants would be paid the sum of $130 per month forthe ministerial services and would bill separately for any unusual or legal work performed onbehalf of the corporation. The defendants sent regular invoices to Cristoballo charging hourlyrates until December 1998.
In late 2000, Shamis discovered that, earlier that year, Duffy had either withdrawn ortransferred to himself or Berg & Duffy the sum of $137,853 from the corporation's bank account.When asked by Shamis to account for these sums, Duffy explained that he had been owed thismoney as back-due commissions pursuant to an alleged oral agreement whereby he was toreceive 5% of all moneys disbursed by the corporation. Shamis disputed that any such agreementwas made, and when Duffy refused to refund the amounts or provide any documentationsupporting the withdrawals or transfers, Duffy was removed as president of the corporation inMarch 2001.
In October 2004, the corporation commenced this action, inter alia, to recover $137,853 indamages for breach of contract and breach of fiduciary duty. After a nonjury trial, the SupremeCourt determined that although the breach of fiduciary duty cause of action was barred by thethree-year statute of limitations, the plaintiff was entitled to recover the sum of $137,853 basedupon a theory of an implied [*2]contract or unjust enrichment,which carries a six-year statute of limitations.
We find no reason to disturb the Supreme Court's factual determination that the parties neverentered into a 5% commission agreement and that the defendants were not entitled to make thewithdrawals or transfers from the plaintiff's bank account (see Northern WestchesterProfessional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Healy vWilliams, 30 AD3d 466, 468 [2006]). Although the plaintiff's breach of fiduciary duty causeof action is time-barred (see Klein v Gutman, 12 AD3d 417, 419-420 [2004];Rattenni v Cerreta, 285 AD2d 636 [2001]; Gold Sun Shipping v Ionian Transp.,245 AD2d 420, 421 [1997]), the Supreme Court correctly determined that the plaintiff mayrecover based on a theory of implied contract or unjust enrichment, to which a six-year statute oflimitations period is applicable (see Board of Educ. of Cold Spring Harbor Cent. School Dist.v Rettaliata, 78 NY2d 128, 138 [1991]; Matter of First Natl. City Bank v City of N.Y.Fin. Admin., 36 NY2d 87, 93 [1975]; Gold Sun Shipping Ltd. v Ionian Transp., 245AD2d at 421; Baratta v Kozlowski, 94 AD2d 454, 464 [1983]).
The parties' remaining contentions are either not properly before this Court or without merit.Fisher, J.P., Dickerson, Eng and Hall, JJ., concur.
Motion by the plaintiff, inter alia, to strike stated portions of the defendants' reply brief on anappeal and cross appeal from a judgment of the Supreme Court, Westchester County, datedJanuary 2, 2008, on the ground that they refer to matter dehors the record or improperly raisearguments for the first time in reply. By decision and order on motion of this Court datedOctober 24, 2008, the motion was held in abeyance and referred to the panel of Justices hearingthe appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and theargument of the appeal, it is
Ordered that the motion is granted to the extent that the references to a New York Countycomplaint that is dehors the record on pages 6 and 7 of the defendants' reply brief are strickenand have not been considered on the appeal and cross appeal; and it is further,
Ordered that the motion is otherwise denied. Fisher, J.P., Dickerson, Eng and Hall, JJ.,concur.