Summary
upholding complete forfeiture of two years' fees and commissions where there existed "no basis in the record for apportionment"
Summary of this case from Sequa Corp. v. GBJ Corp.Opinion
Decided February 3, 1998
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
Order, same court and Justice, entered on or about February 18, 1997, which, to the extent appealed from, denied appellants' motion to vacate the judgment entered January 18, 1996 based on a conflict of interest by the law firm of Mantell Haskel and Kerry Gotlib, Esq., disqualify the law firm and that attorney, and renew their opposition to the prior motion for partial summary judgment on the counterclaims, unanimously affirmed, without costs.
The motion court properly granted summary judgment on the counterclaims alleging fraud and breach of fiduciary duty since assertions in opposition to the motion failed to raise any material issue of fact (see, e.g., Tobron Off. Furniture Corp. v. King World Prods., 161 A.D.2d 355, 357). For the same reason, the motion court properly granted summary judgment with respect to the $26,255.95 settlement check.
The motion court properly granted an interim award of $500,000 in management fees and brokerage commissions for the years 1991-1993, where the evidence demonstrated disloyalty during those years and there is no basis in the record for apportionment (see, Soam Corp. v. Trane Co., 202 A.D.2d 162, lv denied 83 N.Y.2d 758; Bon Temps Agency v. Greenfield, 184 A.D.2d 280, 281, lv denied 81 N.Y.2d 759).
The motion court erred, however, in granting summary judgment on the RICO claim inasmuch as the record does not demonstrate that the RICO "enterprise" was distinct from the RICO "person" (see, Riverwoods Chappaqua Corp. v. Marine Midland Bank, 30 F.3d 339, 344, citing Atkinson v. Anadarko Bank Trust Co., 808 F.2d 438, 440-441, cert denied 483 U.S. 1032). In light of the foregoing determination, we need not address the issue of whether the "continuity" requirement was met.
Finally, the motion court properly denied the motion to vacate, renew and to disqualify, since there was no evidence that the matters involved in both representations were substantially related or materially adverse (see, Tekni-Plex, Inc. v. Meyner Landis, 89 N.Y.2d 123, 131).
We have considered appellants' other arguments and find them to be without merit.
Concur — Sullivan, J. P., Rosenberger, Wallach, Rubin and Tom, JJ.