EPSTEIN ENGINEERING, P.C., plf-ap, v. THOMAS CATALDO def-res

3358. EPSTEIN ENGINEERING, P.C., plf-ap, v. THOMAS CATALDO def-res — Warshaw Burstein, LLP, New York (Bruce H. Wiener of counsel), for ap — Jane M. Myers, P.C., Hauppauge (James E. Robinson of counsel), for Thomas Cataldo and Cataldo Engineering, P.C., res — Ira Daniel Tokayer, New York, for Steve Gregorio, res — Order, Supreme Court, New York County (George J. Silver, J.), entered October 8, 2015, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the issue of liability on its second through fifth causes of action alleging breach of fiduciary duty and the duty of loyalty, unfair competition, conversion, and fraud, unanimously affirmed, without costs.

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3358. EPSTEIN ENGINEERING, P.C., plf-ap, v. THOMAS CATALDO def-res — Warshaw Burstein, LLP, New York (Bruce H. Wiener of counsel), for ap — Jane M. Myers, P.C., Hauppauge (James E. Robinson of counsel), for Thomas Cataldo and Cataldo Engineering, P.C., res — Ira Daniel Tokayer, New York, for Steve Gregorio, res — Order, Supreme Court, New York County (George J. Silver, J.), entered October 8, 2015, which, insofar as appealed from as limited by the briefs, denied plaintiff’s motion for partial summary judgment on the issue of liability on its second through fifth causes of action alleging breach of fiduciary duty and the duty of loyalty, unfair competition, conversion, and fraud, unanimously affirmed, without costs.

The motion court properly denied plaintiff’s motion for summary judgment on its second cause of action for breach of the fiduciary duty of loyalty. Even assuming that plaintiff has established that defendants were disloyal in operating a competing business while employed by plaintiff, plaintiff has failed to establish that defendants usurped any corporate opportunity, by showing that it was seeking any of defendants’ allegedly competing projects, or that its survival was jeopardized by its failure to acquire any of those projects (see Lee v. Manchester Real Estate & Constr., LLC, 118 AD3d 627, 628 [1st Dept 2014]; Alexander & Alexander of N.Y. v. Fritzen, 147 AD2d 241, 246-247 [1st Dept 1989]).

EPSTEIN ENGINEERING, P.C., plf-ap, v. THOMAS CATALDO def-res

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