Opinion
9951 Index 650733/18
10-01-2019
BLUEBANANA GROUP, et al., Plaintiffs–Appellants, v. Dennis SARGENT, Defendant–Respondent, Marc Tenzer, Defendant.
Kraus & Zuchlewski LLP, New York (Desiree J. Gustafson of counsel), for appellants. Law Office of Mark E. Goidell, Garden City (Mark E. Goidell of counsel), for respondent.
Kraus & Zuchlewski LLP, New York (Desiree J. Gustafson of counsel), for appellants.
Law Office of Mark E. Goidell, Garden City (Mark E. Goidell of counsel), for respondent.
Richter, J.P., Gische, Kapnick, Kern, Moulton, JJ.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered September 10, 2019, which, to the extent appealed from as limited by the briefs, granted defendant Dennis Sargent's motion to dismiss the complaint and dismissed the complaint with prejudice, unanimously affirmed, with costs.
Plaintiffs have failed to state a cognizable claim for breach of the duty of loyalty, which requires the employee to have "acted directly against the employer's interests—as in embezzlement, improperly competing with the current employer, or usurping business opportunities" ( Veritas Capital Mgt., L.L.C. v. Campbell , 82 A.D.3d 529, 530, 918 N.Y.S.2d 448 [1st Dept. 2011], lv dismissed 17 N.Y.3d 778, 929 N.Y.S.2d 80, 952 N.E.2d 1074 [2011] ). Plaintiffs have not alleged that they were in any of the same businesses as Sargent. Plaintiffs do not claim any tangible expectancy in Sargent's alleged side business activity, nor are there any well-pled allegations that Sargent stole or embezzled funds. The claim for breach of duty of loyalty/faithless servant was properly dismissed.
Plaintiffs' breach of fiduciary duty claims are duplicative, and should be dismissed for the same reasons. This Court has applied the same standards for determining a breach of duty of loyalty claim to a breach of fiduciary duty claim against an employee (see e.g. Riom Corp. v. McLean , 23 A.D.3d 298, 805 N.Y.S.2d 22 [1st Dept. 2005] ).
Plaintiffs make no argument regarding the court's denial of their cross motion to amend, and therefore we deem this aspect of the appeal abandoned.