Opinion
5207–5208 M–5694 Index 654117/15
12-14-2017
KOSTER, BRADY & NAGLER, LLP, et al., Plaintiffs–Respondents, v. Paul F. CALLAN, et al., Defendants–Appellants.
Robert & Robert, PLLC, Uniondale (Clifford S. Robert of counsel), for appellants. Davidoff Hutcher & Citron LLP, New York (Larry Hutcher of counsel), for respondents.
Robert & Robert, PLLC, Uniondale (Clifford S. Robert of counsel), for appellants.
Davidoff Hutcher & Citron LLP, New York (Larry Hutcher of counsel), for respondents.
Friedman, J.P., Gesmer, Kern, Moulton, JJ.
Orders, Supreme Court, New York County (Ellen M. Coin, J.), entered April 20, 2017, which denied defendants Martin W. Edelman and Edelman & Edelman, P.C. (the Edelman defendants) and defendant-counterclaim plaintiff's Paul F. Callan's motion for summary judgment dismissing the complaint and on Callan's counterclaims and granted plaintiffs' motion for leave to amend the complaint, unanimously modified, on the law, to grant Callan and the Edelman defendants' motion for summary judgment to the extent of dismissing the accounting cause of action as against the Edelman defendants, and otherwise affirmed, without costs.
There is evidence in the record that Callan, while still a partner at plaintiff law firm, worked with defendants to woo a prospective client, concealing from his partners the true nature and extent of his involvement in the matter as he prepared to leave the firm, after which departure he entered into a contingency fee agreement on the matter.
Accordingly, Callan and the Edelman defendants' motion for summary judgment dismissing the complaint was correctly denied, except for the accounting claim as against the Edelman defendants. Since these defendants have no fiduciary duty to plaintiffs, plaintiffs have no right to an accounting from them, even predicated on their alleged aiding and abetting of Callan's breach of fiduciary duty to plaintiffs (see Front, Inc. v. Khalil, 103 A.D.3d 481, 483, 960 N.Y.S.2d 79 [1st Dept. 2013], affd on other grounds 24 N.Y.3d 713, 4 N.Y.S.3d 581, 28 N.E.3d 15 [2015] ; Adam v. Cutner & Rathkopf, 238 A.D.2d 234, 242, 656 N.Y.S.2d 753 [1st Dept. 1997] ).
No prejudice or surprise results from plaintiffs' amendment of the complaint, and the proposed amended complaint is not palpably improper or insufficient as a matter of law (see McGhee v. Odell, 96 A.D.3d 449, 946 N.Y.S.2d 134 [1st Dept. 2012] ).
We have considered defendants' remaining arguments and find them unavailing.
M–5694– Koster, Brady & Nagler, LLP, et al. v. Paul F. Callan
Motion to strike portions of reply brief and to adjourn appeal granted to the extent of striking portions of reply brief, and otherwise denied as academic.