| Royal Warwick S.A. v Hotel Representative, Inc. |
| 2013 NY Slip Op 03379 [106 AD3d 451] |
| May 9, 2013 |
| Appellate Division, First Department |
| Royal Warwick S.A., Appellant, v HotelRepresentative, Inc., et al., Respondents. |
—[*1] Kravet & Vogel, LLP, New York (Donald J. Kravet of counsel), forrespondents.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered March 2,2012, which granted defendants' motion to dismiss to the extent of dismissing the secondcause of action, only as to any claims for dividends under the parties' ReservationAgreement, and the fourth cause of action, for an accounting, unanimously affirmed,with costs.
The court properly found that plaintiff failed to sufficiently allege "partialperformance" to support a claim that the Reservation Agreement was amended to providefor the payment of dividends. Although plaintiff claims that the Reservation Agreementwas modified to include the payment of dividends, plaintiff's allegations in the complaintare based almost exclusively on its reliance on statements contained in the minutes ofnonparty Consortium HR's annual meetings. However, the annual meeting minutesmerely suggest an attempt to implement a dividends policy at some future date, and arenot indicative of any conduct "unequivocally referable" to the oral modification(Anostario v Vicinanzo, 59 NY2d 662, 664 [1983] [internal quotation marksomitted]). As the court properly found, the complaint alleges no more than that dividendswere promised and were intended to replace the shareholder discounts after 2008. And,even if the dividends were promised, "a mere statement of an intention, even if expressedunconditionally and unequivocally does not, on its own, give rise to a binding contract"(Smith v Smith, 66 AD3d584, 585 [1st Dept 2009]).
Plaintiff's claim for an accounting cannot be maintained in the absence of a fiduciaryrelationship between plaintiff and defendants (see Eden v St. Luke's-Roosevelt Hosp. Ctr., 96 AD3d 614,615 [1st Dept 2012]). Plaintiff's claim of breach of fiduciary duty is based entirely on itsallegation that defendants breached their duty under the Reservation Agreement byfailing to provide shareholder discounts and dividends. Accordingly, plaintiff's claim isbased on a contractual, not fiduciary, obligation (see Superior Officers Council Health & Welfare Fund v EmpireHealthChoice Assur., Inc., 85 AD3d 680, 682 [1st Dept 2011], affd 17NY3d 930 [2011]). The record belies plaintiff's contention that it is a shareholder ofeither defendant.[*2]
We have considered plaintiff's remainingcontentions and find them unavailing. Concur—Gonzalez, P.J., Tom, Sweeny,Renwick and Richter, JJ. [Prior Case History: 34 Misc 3d 1232(A), 2012 NY SlipOp 50336(U).]