Opinion
January 6, 2000
Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered July 21, 1999, after a nonjury trial in an action to recover fees earned by plaintiff as a placement agent for defendants investment funds, insofar as appealed from, awarding plaintiff the total sum of $847,459.73, and dismissing defendants' counterclaims for breach of contractual and fiduciary duties, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered July 21, 1999, unanimously dismissed, without costs, as subsumed within the appeal from the judgment.
Mark G. Hanchet, for plaintiff-respondent.
Charles E. Bachman, for defendants-appellants.
SULLIVAN, J.P., MAZZARELLI, WALLACH, RUBIN, ANDRIAS, JJ.
The trial court properly dismissed defendants' counterclaims asserting that plaintiff spent most of its time soliciting subscriptions for other funds in breach of the parties' agreement, and thus forfeited its right to any compensation. Plaintiff did not breach the express terms of paragraph 16 of the 1993 agreement, and cannot be required to forfeit its fees, on breach of fiduciary duty grounds, for doing what paragraph 17 of that agreement expressly gave it the right to do. The trial court properly found the 1995 amendment controlling with respect to the computation of plaintiff's right to residuary profits, and properly granted judgment against the successor in interest to the entities that were signatories to the 1993 agreement and 1995 amendment. We have considered and rejected defendants' other arguments.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.