| Robert I. Gluck, M.D., LLC v Kenneth M. Kamler, M.D.,LLC |
| 2010 NY Slip Op 05532 [74 AD3d 1167] |
| June 22, 2010 |
| Appellate Division, Second Department |
| Robert I. Gluck, M.D., LLC, et al.,Respondents, v Kenneth M. Kamler, M.D., LLC, et al.,Appellants. |
—[*1] David A. Bythewood, Mineola, N.Y., for respondents.
In an action, inter alia, to recover damages for breach of fiduciary duty, unfair competition,and fraud, the defendants appeal from an order of the Supreme Court, Nassau County(Warshawsky, J.), entered May 22, 2009, which granted the plaintiffs' motion for summaryjudgment on the issue of liability on the sixth cause of action alleging breach of fiduciary duty.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the plaintiffs' motion which was for summary judgment on the issue of liability withrespect to so much of the sixth cause of action alleging breach of fiduciary duty as was basedupon the defendants' alleged improper calculation of overhead expenses, and substitutingtherefor a provision denying that branch of the motion; as so modified, the order is affirmed,without costs or disbursements.
In order to succeed on a cause of action to recover damages for breach of fiduciary duty, aplaintiff must do more than make allegations of unscrupulous acts (see Greenberg vJoffee, 34 AD3d 426, 427 [2006]). A plaintiff must prove the existence of a fiduciaryrelationship, misconduct by the defendant, and damages directly caused by the defendant'smisconduct (see Kurtzman v Bergstol, 40 AD3d 588, 590 [2007]).
The plaintiffs alleged that the defendants breached a fiduciary duty owed to them by, interalia, improperly calculating overhead expenses, and consequently, reducing their income.However, the plaintiffs failed to establish, prima facie, that the defendants improperly calculatedthose expenses. Accordingly, the Supreme Court should have denied that branch of the plaintiffs'motion which was for summary judgment on the issue of liability with respect to so much of thecause of action alleging breach of fiduciary duty as was based upon the defendants' allegedimproper calculation of overhead expenses (see Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853 [1985]).
The defendants' remaining contentions are without merit. Covello, J.P., Dickerson, Eng andAustin, JJ., concur.