2018 NY Slip Op 51958

Citation
2018 NY Slip Op 51958
Jurisdiction
New York (state)
Source verification
cross_accepted_sealed
Original Source
https://www.nycourts.gov/reporter/3dseries/2018/2018_51958.htm ↗

Related Parts of This Source

Full Text

1,780 chars 
(breach of fiduciary duty cause of action against cooperative dismissed as duplicative of breach
of proprietary lease cause of action). Nevertheless, "the same conduct which may constitute the
breach of a contractual obligation may also constitute the breach of a duty arising out of the
relationship created by contract but which is independent of the contract itself." Mandelblatt v
Devon Stores, 132 AD2d 162, 167-168 (1st Dept 1987).

The branch of Stable's motion which seeks an order dismissing the amended 2017
complaint's direct breach of fiduciary duty cause of action (fifth cause of action) is granted, and
that cause of action is dismissed. To the extent that this cause of action is brought by
Blumenfeld, he is not a Stable shareholder, and the complaint sets forth no allegations as to how
[*18]and why the Board would owe him a fiduciary duty.
Although this claim is asserted against Cavaleri, there is no specific allegation that he breached
any fiduciary duty to plaintiffs. As previously noted, the mere fact that he was appointed Stable's
assistant secretary in 2017 is inadequate, because there is no allegation that he had any relevant
decision making authority in that role relevant to this cause of action, and Dogwood LLC has not
sought to further amend this complaint to allege any cause of action against him.

As for the portion of the fifth cause of action relating to all claims aside from those
pertaining to the Board's alleged inaction regarding the nonconforming cellar units, the
allegations are wholly conclusory, replete with surmise and speculation, and are devoid of facts
necessary to meet the pleading requirements of CPLR 3016 (b). See 2017 action amended
complaint, ¶¶ 165-171. For example, plaintiffs merely speculate that Matanic, who