10753. DAVID MOYAL, BOTH INDIVIDUALLY AND DERIVATIVELY ON BEHALF OF GROUP IX, INC. d/b/a DOTCOM HOTEL OF NY, plf-ap, v. GROUP IX, INC., d/b/a DOT COM HOTEL OF NYC def-res — Morrison Cohen LLP, New York (David A. Piedra of counsel), for ap — Sadis & Goldberg, LLP, New York (Douglas R. Hirsch of counsel), for res — Order, Supreme Court, New York County (Eileen Bransten, J.), entered May 30, 2012, which, insofar as appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing the fourth cause of action against the individual defendants, the seventh cause of action as against Telecom Switching, Inc., and the ninth cause of action against the individual defendants, unanimously modified, on the law, to deny the motion to the extent it sought dismissal of so much of the fourth cause of action as alleges breach of fiduciary duty against defendants Teeman and Sleppin based on the transactions between defendants Group IX, Inc. and Telecom Switching, and the seventh cause of action as against Telecom Switching, and otherwise affirmed, without costs.
Defendants failed to make a prima facie showing that the transactions between Group IX and Telecom Switching were fair. In their moving papers, they merely established that Telecom Switching paid Group IX a certain amount; one cannot tell from the evidence defendants initially submitted whether Telecom Switching received a “sweetheart” deal. Accordingly, regardless of the sufficiency of plaintiff’s opposition papers, the court should not have dismissed so much of the fourth cause of action as alleges that Teeman (an officer of Group IX who also owns Telecom Switching) and Sleppin (who signed the Group IXTelecom Switching contract on behalf of Group IX, and whose company is a customer of Telecom Switching) breached their fiduciary duty by engaging in the Group IX-Telecom Switching transactions (Kramer v. Danalis, 92 AD3d 513 [1st Dept 2012]; see also Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]).
