From Casetext: Smarter Legal Research

DeBenedictis v. Malta

Supreme Court, Appellate Division, First Department, New York.
Jun 7, 2016
140 A.D.3d 438 (N.Y. App. Div. 2016)

Opinion

06-07-2016

Robert N. DeBENEDICTIS, Plaintiff–Respondent, v. Robert MALTA, Defendant–Appellant, Salvatore Gaudio, Defendant. [And a Third–Party Action].

  Catafago Fini LLP, New York (Jacques Catafago and Adam Sherman of counsel), for appellant. Zetlin & De Chiara LLP, New York (James H. Rowland of counsel), for respondent.


Catafago Fini LLP, New York (Jacques Catafago and Adam Sherman of counsel), for appellant.

Zetlin & De Chiara LLP, New York (James H. Rowland of counsel), for respondent.

TOM, J.P., SWEENY, MOSKOWITZ, GESMER, JJ.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered March 9, 2015, which, inter alia, denied defendant Robert Malta's motion for summary judgment dismissing plaintiff's claims for breach of fiduciary duty and fraudulent concealment, unanimously affirmed, without costs.

Defendant could not raise the argument that he was not a fiduciary for the first time on appeal from the denial of summary judgment. This fact-based argument is not the type generally considered for the first time on appeal (compare Vanship Holdings Ltd. v. Energy Infrastructure Acquisition Corp., 65 A.D.3d 405, 408–409, 884 N.Y.S.2d 24 [1st Dept.2009] ). By raising it at this stage, defendant deprived plaintiff of the opportunity to annex relevant evidence to its affidavits (see First Intl. Bank of Israel v. Blankstein & Son, 59 N.Y.2d 436, 447, 465 N.Y.S.2d 888, 452 N.E.2d 1216 [1983] ). In any event, the record shows that defendant, who was a co-managing member of various LLCs with plaintiff, and who had broad, long-standing business dealings with him, failed to establish a lack of fiduciary duty as a matter of law (see Salm v. Feldstein, 20 A.D.3d 469, 799 N.Y.S.2d 104 [2d Dept.2005] ).

Defendant failed to establish any waiver, release, or limitation of his fiduciary obligations, simply by virtue of a standard integration clause in the parties' agreement. It is true that sophisticated parties can release fiduciaries from their obligations and from claims (see Centro Empresarial Cempresa S.A. v. America Movil, S.A.B. de C.V., 17 N.Y.3d 269, 277, 929 N.Y.S.2d 3, 952 N.E.2d 995 [2011] ). However, such an agreement must contain a broad general release (see id. ), or an express release of fiduciary claims (see Pappas v. Tzolis, 20 N.Y.3d 228, 232–233, 958 N.Y.S.2d 656, 982 N.E.2d 576 [2012] ). Moreover, these waivers must be made where there is no longer a relationship of trust (id. at 233, 958 N.Y.S.2d 656, 982 N.E.2d 576 ). Here, the mere fact that plaintiff did not want to go through with developing certain of the properties was not dispositive of a lack of trust. For these same reasons, plaintiff was not under a duty of heightened diligence with regard to the transaction.

Furthermore, since the only challenge to the fraudulent concealment claim was that defendant was not a fiduciary, summary judgment was properly denied as to that claim as well.


Summaries of

DeBenedictis v. Malta

Supreme Court, Appellate Division, First Department, New York.
Jun 7, 2016
140 A.D.3d 438 (N.Y. App. Div. 2016)
Case details for

DeBenedictis v. Malta

Case Details

Full title:Robert N. DeBENEDICTIS, Plaintiff–Respondent, v. Robert MALTA…

Court:Supreme Court, Appellate Division, First Department, New York.

Date published: Jun 7, 2016

Citations

140 A.D.3d 438 (N.Y. App. Div. 2016)
33 N.Y.S.3d 232
2016 N.Y. Slip Op. 4338

Citing Cases

Wimbledon Fin. Master Fund, Ltd. v. Wilmington Fund, SPC ex rel. Class C Segregated Portfolio

Class C makes various arguments as to why the transfer was not a fraudulent conveyance. We decline to…

Marcal Fin. SA v. Sutton

Even if Middlegate Insurance shared offices with Middlegate at that time, a fact not established by evidence…