Opinion
12640N Index No. 655144/18 Case No. 2020-01817
12-15-2020
Michael ROSENBERG, Plaintiff–Appellant, v. Aron ROSENBERG, et al, Defendants–Respondents.
The Abramson Law Group, PLLC, New York (Howard Wintner of counsel), for appellants. Jacobowitz Newman Tversky LLP, Cedarhurst (Abraham S. Beinhorn of counsel), for respondent.
The Abramson Law Group, PLLC, New York (Howard Wintner of counsel), for appellants.
Jacobowitz Newman Tversky LLP, Cedarhurst (Abraham S. Beinhorn of counsel), for respondent.
Renwick, J.P., Gische, Gonza´lez, Scarpulla, Mendez, JJ.
Order, Supreme Court, New York County (Andrew Borrok, J.), entered February 21, 2020, which, to the extent appealed from, granted plaintiff's motion to compel discovery and denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.
Contrary to defendants' argument that the claims for breach of contract, breach of fiduciary duty, an accounting, and injunctive relief are derivative, the motion court correctly determined that plaintiff seeks redress for injury to himself individually (see Yudell v. Gilbert, 99 A.D.3d 108, 113–114, 949 N.Y.S.2d 380 [1st Dept. 2012] ). The complaint alleges that defendant Aron Rosenberg, as managing member of defendant companies, ceased making distributions to plaintiff, thereby breaching a duty he owed to plaintiff independent of the duties he owed to the companies (see Venizelos v. Oceania Mar. Agency, 268 A.D.2d 291, 702 N.Y.S.2d 17 [1st Dept. 2000] ). The court also correctly determined that plaintiff had standing in his individual capacity to assert a cause of action for an accounting ( Gottlieb v. Northriver Trading Co. LLC, 58 A.D.3d 550, 551, 872 N.Y.S.2d 46 [1st Dept. 2009] ).
Contrary to defendants' argument that the court should have dismissed plaintiff's causes of action for inspection of books and records because defendants fulfilled their obligations under Limited Liability Company Law § 1102 during discovery defendants failed conclusively to show that they have produced all required documents. Further, defendants failed to show that information for the years immediately before the alleged freeze-out is not relevant or that that they will be prejudiced by the production ordered by the court.
We have considered defendants' remaining contentions and find them unavailing.