| Benfeld v Fleming Props., LLC |
| 2011 NY Slip Op 07789 [89 AD3d 654] |
| November 1, 2011 |
| Appellate Division, Second Department |
| Igor Benfeld et al., Plaintiffs, v Fleming Properties, LLC,Respondent, and Igor Fleyshmakher, Also Known as Isaac Marks, Appellant, et al., Defendant.(And a Third-Party Action.) |
—[*1] Krol & O'Connor, New York, N.Y. (Igor Krol of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant IgorFleyshmakher, also known as Isaac Marks, appeals, as limited by his brief, from so much of anorder of the Supreme Court, Richmond County (Maltese, J.), dated June 23, 2010, as denied thatbranch of his motion which was for summary judgment dismissing the second cross claim of thedefendant Fleming Properties, LLC, for an accounting.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant Igor Fleyshmakher, also known as Isaac Marks, established his prima facieentitlement to judgment as a matter of law dismissing the second cross claim of the defendantFleming Properties, LLC (hereinafter Fleming), for an accounting by demonstrating that he hadno fiduciary relationship with Fleming (see generally Weinstein v Natalie Weinstein Design Assoc., Inc., 86AD3d 641, 643 [2011]). Specifically, Fleyshmakher demonstrated through his affidavit thathe had never been a member or a manager of Fleming, and had never acted or purported to act onits behalf, and further demonstrated that Fleming was a member-managed limited liabilitycompany (see Limited Liability Company Law § 401 [a]). In opposition, however,Fleming raised triable issues of fact as to whether a fiduciary relationship existed. "The creationof a fiduciary duty does not depend upon the existence of an agreement or contract between theparties, but results from the relationship between the fiduciary and the beneficiary" (Barrett v Freifeld, 64 AD3d 736,739 [2009]; see EBC I, Inc. v Goldman,Sachs & Co., 5 NY3d 11, 19-20 [2005]). "A fiduciary relationship may exist when oneparty reposes confidence in another and reasonably relies on the other's superior expertise orknowledge, but not in an arm's-length business transaction involving sophisticated businesspeople" (Barrett v Freifeld, 64 AD3d at 739; see WIT Holding Corp. v Klein, 282AD2d 527, 529 [2001]). Here, Fleming raised triable issues of fact regarding the extent ofFleyshmakher's involvement in Fleming and whether Fleyshmakher acted on behalf of andexercised dominion and control over Fleming's operations.
Fleyshmakher's remaining contentions are without merit.[*2]
Accordingly, the Supreme Court properly denied thatbranch of Fleyshmakher's motion which was for summary judgment dismissing Fleming's secondcross claim for an accounting. Skelos, J.P., Chambers, Sgroi and Miller, JJ., concur.