Opinion
No. 2707.
May 4, 2010.
Order, Supreme Court, New York County (Walter B. Tolub, J.), entered November 23, 2009, which denied defendant's motion to dismiss the complaint, unanimously affirmed, with costs.
Jones Hirsch Connors Bull, P.C., New York (Alan M. Gelb of counsel), for appellant.
Stempel Bennett Claman Hochberg, P.C., New York (Richard L. Claman of counsel), for respondent.
Before: Andrias, J.P., Friedman, Catterson, McGuire and Romáan, JJ.
In this action alleging breach of fiduciary duty and seeking forfeiture of defendant's consulting fee and commission, there are issues of fact as to whether the consulting agreement was extinguished by the agreement naming defendant as cobroker ( see generally Water St. Dev. Corp. v City of New York, 220 AD2d 289, 290, lv denied 88 NY2d 809); the documentary evidence is inconclusive and defendant does not contest the existence of a fiduciary relationship. There are also issues of fact as to whether defendant breached his fiduciary duty by allegedly obtaining a $1.2 million commission without plaintiffs knowledge, despite his promise to minimize its lease renewal costs.
We have considered defendant's other contentions and find them unavailing.