| Verderber v Commander Enters. Centereach, LLC |
| 2011 NY Slip Op 05049 [85 AD3d 770] |
| June 7, 2011 |
| Appellate Division, Second Department |
| Joseph E. Verderber et al., Appellants, v CommanderEnterprises Centereach, LLC, et al., Respondents. |
—[*1] Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (Matthew F. Didora and Douglas A.Cooper of counsel), for respondents.
In an action for declaratory relief and to recover damages for breach of fiduciary duty andfraud, the plaintiffs appeal, as limited by their brief, from so much of an order of the SupremeCourt, Nassau County (Washawsky, J.) entered October 20, 2009, as, upon granting their motionto dismiss a counterclaim asserted by the defendant Commander Enterprises Centereach, LLC,and denying the defendants' cross motion to compel arbitration and for a preliminary injunction,found that an operating agreement dated October 1, 2000, governed the defendant CommanderEnterprises Centereach, LLC, and its members.
Ordered that the appeal is dismissed, with costs.
The order from which the plaintiffs appeal granted their motion to dismiss a counterclaimasserted by the defendants and denied the defendants' cross motion to compel arbitration and fora preliminary injunction. On appeal, the plaintiffs seek review of the Supreme Court's factualdetermination, made in the context of denying the defendants' cross motion, that an operatingagreement dated October 1, 2000, governed the defendant Commander Enterprises Centereach,LLC, and its members. We dismiss the appeal because findings of fact which do not grant ordeny relief are not independently appealable (see Zoref v Glassman, 44 AD3d 1036 [2007];Davidson-Sakuma v Sakuma, 280 AD2d 577, 578 [2001]; Meachum v OutdoorWorld Corp., 273 AD2d 208, 209 [2000]; Clark v Weiner, 254 AD2d 322 [1998];Matter of County of Westchester v O'Neill, 191 AD2d 556 [1993]). Covello, J.P., Eng,Hall and Roman, JJ., concur.