Opinion
November 13, 2001.
Order, Supreme Court, New York County (Barry Cozier, J.), entered on or about August 3, 2000, which granted plaintiff's and third-party defendants' motion for summary judgment dismissing defendants/third-party plaintiffs' ninth and tenth counterclaims in the main action and first and second causes of action in the purported third-party action, unanimously affirmed, with costs.
Alan M. Goldberg, for plaintiff-respondent.
Jeffrey Turkel, for defendants-appellants.
Jeffrey Turkel, for third-party plaintiffs-appellants.
Alan M. Goldberg, for third-party defendants-respondents.
Before: Sullivan, P.J., Williams, Tom, Mazzarelli, Andrias, JJ.
The causes of action at issue on this appeal, purportedly for breach of fiduciary duty, are asserted by Gramercy North Associates (Associates), a limited partnership that is a shareholder of plaintiff cooperative corporation (Lex Tenants), and two general partners of Associates, against Lex Tenants and several of Lex Tenants' present or former directors. The movants submitted evidence, including, inter alia, the deposition testimony of the Associates general partner who was represented as having relevant knowledge, which Associates failed to rebut, establishing that Associates was unable to identify any actual loss that resulted from any alleged separate and distinct wrong to Associates. Accordingly, the causes of action seeking damages were correctly dismissed, since Associates will be unable to recover any more than nominal compensatory damages at trial (see, Abrams v. Donati, 66 N.Y.2d 951, 953; cf., Gibbs v. Breed, Abbott Morgan, 271 A.D.2d 180, 189), and has failed to come forward with evidence of misconduct by the movants that would meet the "very high threshold of moral culpability" (Giblin v. Murphy, 73 N.Y.2d 769, 772) required for an award of punitive damages. The causes of action seeking injunctive relief were also properly dismissed since, it appearing to be undisputed that the misconduct alleged by Associates has not recurred for years, there does not appear to be a likelihood of future misconduct (see, Greenfield v. Schultz, 251 A.D.2d 67, 67-68, affg in pertinent part 173 Misc.2d 31, 35-36). Finally, the denial of an earlier summary judgment motion addressed to these causes of action did not render inappropriate the granting of this motion, since the second motion was based on evidence obtained from Associates through discovery after disposition of the earlier motion (cf., Phoenix Four v. Albertini, 245 A.D.2d 166).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.