| Jones v Voskresenskaya |
| 2015 NY Slip Op 01560 [125 AD3d 532] |
| February 24, 2015 |
| Appellate Division, First Department |
[*1]
| Harry Jones, Appellant-Respondent, v NatalyaVoskresenskaya, Respondent, and Discover Technologies, LLC,Respondent-Appellant. |
Peska & Associates, P.C., White Plains (Adam M. Peska of counsel), forappellant-respondent.
Greenberg Traurig LLP, New York (James W. Perkins of counsel), forrespondent-appellant.
Law Office of Thomas M. Mullaney, New York (Thomas M. Mullaney of counsel),for respondent.
Judgment, Supreme Court, New York County (Melvin L. Schweitzer, J.), enteredJuly 14, 2014, awarding defendant Discover Technologies, LLC (Discover) $81,807.60in attorneys' fees, disbursement and interest, unanimously affirmed, without costs.Orders, same court and Justice, entered November 8, 2013 and on or about November 4,2013, which granted the motions to dismiss the complaint brought against defendantsDiscover and Natalya Voskresenskaya, unanimously modified, on the law, to reinstateplaintiff's claim for breach of fiduciary duty against defendant Voskresenskaya, andotherwise affirmed, without costs.
The motion court erred in dismissing plaintiff's cause of action for breach offiduciary duty against defendant Voskresenskaya. Plaintiff alleges that he andVoskresenskaya are equal members of the computer technology firm, Arcovis, LLC,pursuant to an operating agreement. The members of an LLC may stand in a fiduciaryrelationship to each other and the LLC (see Pokoik v Pokoik, 115 AD3d 428, 429 [1st Dept 2014]).Although Voskresenskaya raises issues about the viability of the operating agreementand the relative percentages of ownership and control, plaintiff's allegations are entitledto the benefit of every favorable inference at this point in the litigation (Leon vMartinez, 84 NY2d 83, 87-88 [1994]). Plaintiff further alleges that followingextensive communications and negotiations between Arcovis and Discover about workArcovis would do on an FDA contract awarded to Discover, Voskresenskaya wasdirectly hired by Discover to do the work in her individual capacity. Plaintiff claims tohave suffered $5 million in damages, representing lost business opportunity. Breach offiduciary duty requires (1) the existence of a fiduciary duty owed by the defendant; (2) abreach of that duty; and (3) resulting damages (Burry v Madison Park Owner LLC, 84 AD3d 699, 700 [1stDept 2011]). The [*2]facts alleged adequately support theclaim and are set forth with sufficient particularity to survive a motion to dismiss (CPLR3211 [a]; 3016 [b]; Stewart Tit.Ins. Co. v Liberty Tit. Agency, LLC, 83 AD3d 532, 533 [1st Dept 2011]).
To the extent that plaintiff is suing derivatively on behalf of Arcovis, he hassufficiently plead demand futility, in that Voskresenskaya, a coequal member of the LLC,has an interest in the challenged transaction (Segal v Cooper, 49 AD3d 467, 468 [1st Dept 2008).
The cause of action as against defendant Voskresenskaya for tortious interferencewith prospective contractual relations was, however, properly dismissed since plaintifffailed to sufficiently allege that defendant Voskresenskaya acted "solely [out of] malice"or used improper means (Lion'sProp. Dev. Group LLC v New York City Regional Ctr., LLC, 115 AD3d 488,489 [1st Dept 2014]).
The motion court also correctly dismissed the complaint as against defendantDiscover. The cause of action for breach of contract failed to sufficiently articulate thatDiscover breached the nondisclosure agreement it entered into with Arcovis, LLC. Theallegations supporting this cause of action are vague, speculative and unsupported by anyfacts (see Gordon v Dino De Laurentiis Corp., 141 AD2d 435, 436 [1st Dept1988]). Contrary to plaintiff's contention, defendant Discover is entitled toattorneys' fees pursuant to the parties' nondisclosure agreement. We note that itspecifically requested fees and expenses in its notice of motion and that its request wasgranted sub silentio by the motion court which indicated that the motion was granted inits entirety.
The Special Referee's determination denying recovery of "fees on fees" was propersince the parties' agreement does not explicitly provide for such fees (see 546-552 W. 146th St. LLC vArfa, 99 AD3d 117, 120 [1st Dept 2012]). The Special Referee also properlydenied Discover legal fees incurred in defending Voskresenskaya because she is not aparty to an agreement which provides for recovery of attorneys' fees (see Gotham Partners, L.P. v HighRiv. Ltd. Partnership, 76 AD3d 203, 204 [1st Dept 2010], lv denied 17NY3d 713 [2011]). Concur—Friedman, J.P., Andrias, Saxe, Richter and Gische,JJ.