STEVEN STEWART, a/k/a STEVEN MCINTOSH, ap, v. DAVID M. BERGER, ETC. res

STEVEN STEWART, a/k/a STEVEN MCINTOSH, ap, v. DAVID M. BERGER, ETC. res — (INDEX NO. 2041/12)In an action, inter alia, to recover damages for breach of fiduciary duty, breach of contract, and fraud, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Silber, J.), dated January 7, 2014, as denied those branches of his motion which were to vacate so much of an order of the same court (Baynes, J.), dated June 21, 2012, as granted those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the second, third, and fourth causes of action, which alleged breach of fiduciary duty, breach of contract, and fraud, respectively, and so much of the complaint as sought punitive damages, upon his failure to oppose the defendants' motion.

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STEVEN STEWART, a/k/a STEVEN MCINTOSH, ap, v. DAVID M. BERGER, ETC. res — (INDEX NO. 2041/12)In an action, inter alia, to recover damages for breach of fiduciary duty, breach of contract, and fraud, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Silber, J.), dated January 7, 2014, as denied those branches of his motion which were to vacate so much of an order of the same court (Baynes, J.), dated June 21, 2012, as granted those branches of the defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the second, third, and fourth causes of action, which alleged breach of fiduciary duty, breach of contract, and fraud, respectively, and so much of the complaint as sought punitive damages, upon his failure to oppose the defendants’ motion.

ORDERED that the order dated January 7, 2014, is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provisions thereof denying those branches of the plaintiff’s motion which were to vacate so much of the order dated June 21, 2012, as granted those branches of the defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the third and fourth causes of action, and substituting therefor a provision granting those branches of the plaintiff’s motion; as so modified, the order dated January 7, 2014, is affirmed insofar as appealed from, with one bill of costs payable to the plaintiff, and the matter is remitted to the Supreme Court, Kings County, for a determination, on the merits, of those branches of the defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the third and fourth causes of action following submission of opposition papers by the plaintiff.

STEVEN STEWART, a/k/a STEVEN MCINTOSH, ap, v. DAVID M. BERGER, ETC. res

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