Opinion
02-15-2024
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Plaintiff–Appellant, v. EAST COAST POWER & GAS LLC, Defendant–Respondent, Anthony Milanese et al., Defendants.
Proman Legal, P.C., New York (Jonathan M. Proman of counsel), for appellant. Levitt LLP, Mineola (James E. Brandt of counsel), for respondent.
Proman Legal, P.C., New York (Jonathan M. Proman of counsel), for appellant.
Levitt LLP, Mineola (James E. Brandt of counsel), for respondent. Manzanet–Daniels, J.P., Kapnick, Shulman, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered September 13, 2022, which denied Con Edison’s motion to dismiss the fourth counterclaim for an accounting asserted by defendant East Coast Power & Gas LLC, unanimously affirmed, with costs.
Although the parties focus on whether a fiduciary relationship existed sufficient to warrant an equitable accounting, this is an action for money damages, i.e., an action at law (see Cadwalader Wickersham & Taft v. Spinale, 177 A.D.2d 315, 576 N.Y.S.2d 24 [1st Dept. 1991]). The subject complaint is a breach of contract action seeking money damages for amounts allegedly owed to Con Edison by East Coast, and the accounting was "merely a method to determine the amount of monetary damages," with the equitable fourth counterclaim for an accounting "primarily incidental to the defenses at law" (Abrams v. Rogers, 195 A.D.2d 349, 350, 600 N.Y.S.2d 223 [1st Dept. 1993]). Further, Con Edison provided two accountings prior to the court’s order without objection (see Corcoran v. Ardra Ins. Co., 166 A.D.2d 250, 251, 564 N.Y.S.2d 106 [1st Dept. 1990]).
Contrary to Con Edison’s contention, Supreme Court did not improperly grant the ultimate relief sought by East Coast’s accounting counterclaim as part of discovery (Macklowe v. 42nd St. Dev. Corp., 157 A.D.2d 566, 567, 550 N.Y.S.2d 309 [1st Dept. 1990]), as this was an action for money damages, whereby Supreme Court repeatedly ordered an accounting of "comprehensible, reliable data," by which the parties "can intelligently discuss a mediated resolution of their disputes."