21ST CENTURY DIAMOND, LLC, PLAINTIFF, v. ALLFIELD TRADING, LLC def

10896N-10897N. 21ST CENTURY DIAMOND, LLC, PLAINTIFF, v. ALLFIELD TRADING, LLC def — ALLFIELD TRADING, LLC Third-Party plf-res, v. EXELCO NORTH AMERICA, INC. Third-Party def-ap, EXELCO, NV, ETC. Third-Party def — Jones Day, New York (Stephen J. Pearson of counsel), for ap — Judd Burstein, P.C., New York (Peter B. Schalk of counsel), for res — Order, Supreme Court, New York County (Lawrence K. Marks, J.), entered on or about July 24, 2012, which, insofar as appealed from, granted third-party plaintiffs' motion for leave to amend their complaint, unanimously modified, on the law, to deny leave to add claims relating to the Robbins Brothers corporate opportunity, and otherwise affirmed, without costs. Order, same court and Justice, entered on or about April 9, 2013, which, insofar as appealed from, granted third-party plaintiffs' motion for leave to file a second amended third-party complaint, unanimously modified, on the law, to deny leave to add the cause of action for an injunction, and otherwise affirmed, without costs.

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10896N-10897N. 21ST CENTURY DIAMOND, LLC, PLAINTIFF, v. ALLFIELD TRADING, LLC def — ALLFIELD TRADING, LLC Third-Party plf-res, v. EXELCO NORTH AMERICA, INC. Third-Party def-ap, EXELCO, NV, ETC. Third-Party def — Jones Day, New York (Stephen J. Pearson of counsel), for ap — Judd Burstein, P.C., New York (Peter B. Schalk of counsel), for res — Order, Supreme Court, New York County (Lawrence K. Marks, J.), entered on or about July 24, 2012, which, insofar as appealed from, granted third-party plaintiffs’ motion for leave to amend their complaint, unanimously modified, on the law, to deny leave to add claims relating to the Robbins Brothers corporate opportunity, and otherwise affirmed, without costs. Order, same court and Justice, entered on or about April 9, 2013, which, insofar as appealed from, granted third-party plaintiffs’ motion for leave to file a second amended third-party complaint, unanimously modified, on the law, to deny leave to add the cause of action for an injunction, and otherwise affirmed, without costs.

The motion court properly granted the portion of third-party plaintiffs’ first motion to amend the complaint seeking to add a breach of fiduciary duty claim against third-party defendants Jean-Paul Tolkowsky and Fazal Chaudhri. Liberally construed, the proposed amended third-party complaint alleges that Chaudhri, plaintiff’s designated manager, owes a fiduciary duty to plaintiff (a Delaware limited liability corporation) and that Tolkowsky owes a duty to plaintiff because he became its de facto manager, having seized control of plaintiff (see Feeley v. NHAOCG, LLC, 62 A3d 649, 660 [Del Ch 2012] [and cases cited therein]; see also Bay Ctr. Apts. Owner, LLC v. Emery Bay PKI, LLC, 2009 WL 1124451, *12, 2009 Del Ch LEXIS 54, *45 [Del Ch, Apr. 20, 2009, C.A. No. 3658-VCS]).

21ST CENTURY DIAMOND, LLC, PLAINTIFF, v. ALLFIELD TRADING, LLC def

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