Opinion
05-31-2016
HEARST MAGAZINES, etc., Plaintiff–Respondent, v. GREENSTONE/FONTANA CORP., et al., Defendants, Jeanne Fontana, Defendant–Appellant.
Peter C. Kaiteris, P.C., Bayport (Peter C. Kaiteris of counsel), for appellant. Law Offices of Bernard D'Orazio & Associates, P.C., New York (Bernard D'Orazio of counsel), for respondent.
Peter C. Kaiteris, P.C., Bayport (Peter C. Kaiteris of counsel), for appellant.
Law Offices of Bernard D'Orazio & Associates, P.C., New York (Bernard D'Orazio of counsel), for respondent.
Opinion Judgment, Supreme Court, New York County (Saliann Scarpulla, J.), entered March 4, 2015, after a bench trial, in favor of plaintiff and against, inter alia, defendant Jeanne Fontana in the aggregate amount of $88,353.81, unanimously affirmed, with costs.
As a general matter, the unasserted claim by plaintiff magazine against its frequent advertiser would not constitute a cognizable claim for damages (see Phillips–Smith Specialty Retail Group II v. Parker Chapin Flattau & Klimpl, 265 A.D.2d 208, 210, 696 N.Y.S.2d 150 [1st Dept.1999], lv. denied 94 N.Y.2d 759, 705 N.Y.S.2d 6, 726 N.E.2d 483 [2000] ). Moreover, where the funds were converted by defendant advertising agency, but the ad for which it received the funds nevertheless ran, there is no claim for conversion of the funds (see generally Hillsley v. State Bank of Albany, 24 A.D.2d 28, 30, 263 N.Y.S.2d 578 [1st Dept.1965] ).
However, where, as here, a fiduciary profits from a breach of loyalty, those profits must be paid over to the principal (see Tsutsui v. Barasch, 67 A.D.3d 896, 898–899, 892 N.Y.S.2d 400 [2d Dept.2009] ). Accordingly, the trial court properly entered judgment in plaintiff's favor in the amount of the ill-gotten proceeds.
TOM, J.P., MAZZARELLI, ANDRIAS, MANZANET–DANIELS, GESMER, JJ., concur.