Opinion
Index No. 505323/2021 Motion Seq. 4
05-18-2023
ALEXANDER YAMPOLSKY, suing individually and derivatively on GROUP LLC, behalf of SUPREME TRUCKING Plaintiffs, v. DMITRY TSARYUK, TD BANK MOLDTRANS EXPRESS INC ., Defendants,
Unpublished Opinion
DECISION AND ORDER
LEON RUCH.ELSMAN, J.
The plaintiff has moved pursuant to CPLR §3212. seeking, summary judgment on the cause of action for ah accounting.. The defendant has opposed the motion. Papers were, submitted by the parties and after reviewing all the arguments this court now makes the following determination.
As recorded in a prior order, the plaintiff Alexander Yampolsky is a ten percent owner and the defendant Dmitry Tsaryuk is a ninety percent owner of Supreme Trucking Group LLC, a company engaged in the trucking business. The plaintiff commenced this, lawsuit alleging the defendant has. failed, to give; him the distributions due and has essentially stolen money from the company and has diverted the funds of the company to another entity, defendant Mbldtrans Express Inc. The plaintiff sought discovery which included the business records of the, company as. well as an equitable accounting. The plaintiff asserts the defendant failed to provide any such discovery. The plaintiff now moves seeking summary judgment that he is entitled to an accounting. He asserts there are no questions of fact he is entitled to a summary determination concerning this cause of action. As noted the defendant opposes the motion.
Conclusions of Law
Where the material facts at issue in a case are in dispute summary judgment cannot be granted (Zuckerman v. City of New York, 49 N.Y.S.2d 557, 427 N.Y.S.2d 595 [ 1980]) . Generally, it is for the jury, the trier of fact to determine the legal cause-, of any injury, however, where only one conclusion may be drawn from the facts then the question of legal cause may be decided by the trial court as .a matter of law: (Marino v. Jamison, 189 A.D.3d 1021, 136 N.Y.S.3d 324 [2d Dept., 2021).
It is well settled that an accounting, is an equitable remedy that a party may seek where the party can establish "the existence of a confidential or fiduciary relationship and a breach of the duty imposed by that relationship respecting property in which the party seeking the accounting has an interest" (see, Rosenberg v. Perlstein, 200 A.D.3d 915, 158 N.Y.S.3d 233 [2d Dept., 2021]). Thus, to obtain an accounting the plaintiff must, demonstrate "some wrongdoing on the. part of a defendant with respect to the fiduciary relationship" (Patella v. RSA Consultants Inc., 164 A.D.3d 806, 83 N.Y.S.3d 630 [2d Dept., 2018]). Indeed, while the First Department seems to dispense with the showing of wrongdoing to obtain an accounting (see, Morgulas v. J. Yudell Realty Inc., 161 A.D.2d 211, 554 N.Y.S.2d 597 [1st Dept., 1990]) the Second Department requires that showing (Benedict v. Whitman Breed Abbot & Morgan, 110 A.D.3d 935, 973 N.Y.S.2d 341 [2d Dept., 2013]). Moreover, in Owen v. Blumenthal,. 280 NY 96, 19 N.E.2d 977 [1939] the Court of Appeals explained that "in so far as an accounting: is based upon wrongdoing thus alleged, it may not be had unless such wrongdoing is first established" (id, see, also, Barry v. Clermont York Associates LLC, 50 Misc.3d 1203(A), 28 N.Y.S.3d 647 [Supreme Court New York County 2015]). Therefore, in Soley v. Wasserman, 2013 WL 526732 [S.D.N.Y. 2013] the court denied a motion for summary judgment on an .equitable accounting claim where any underlying wrongdoing had not yet been established.
In this case there has been no determination whether the defendant breached any fiduciary duty or committed any wrongdoing sufficient to conclude the plaintiff is thus entitled to an accounting. The plaintiff argues that "Tsaryuk's conduct in relation, to his partner Yampolsky was neither honorable nor honest" (see, .Memorandum of Law, page 14 [NYSCEF Doc. No. 92]). The plaintiff further asserts that "Tsaryuk committed wrongful and fraudulent acts to convert the Plaintiff's share of the Supreme's distributions, as well as Plaintiff's investments and contributions to the business,, and ..even Plaintiff's 10% interest all to himself" (id) . While those allegations require resolution, there has been no conclusive determination the defendant committed any wrongdoing. Therefore, there can be no summary determination concerning the claim for an equitable accounting. Consequently, the motion seeking summary judgment is therefore denied.
So ordered.