Plotch v. Sheibar

Order, Supreme Court, Bronx County (Bernard Burstein, J.), entered April 16, 1993, which, inter alia, granted plaintiffs motion for summary judgment to the extent of directing each individual defendant, upon receipt of one half of what he or she paid to acquire an ownership interest in defendant corporation, to turn over to plaintiff one half of such interest, and directing an accounting of the profits from the operation of the motel owned by defendant corporation, unanimously affirmed, with costs. We agree with the IAS Court that, without giving the evidence adduced in Plotch v Plotch (Sup Ct, Bronx County, Burstein, J., index No. 8479/89; see, App Div, 1st Dept. Sept. 21, 1993, M-4174) preclusive effect, no issue of fact exists concerning defendant Jeffrey Sheibar’s status as an employee of the parties’ joint venture in operating three motels, and that his first loyalty should have been to the joint venture when he learned of an opportunity to acquire another motel. (See, Bon Temps Agency v Greenfield, 184 AD2d 280, 281, lv dismissed 81 NY2d 759.) We also agree with the IAS Court that even if defendants were innocent of any breach of loyalty owing to plaintiff, still they were unjustly enriched by the diversion of the opportunity, and thus imposition of a constructive trust was justified (see, Simonds v Simonds, 45 NY2d 233, 242). Jurisdiction over defendant Plotch exists under CPLR 302 (a) (1) (see, Home Box Off. v Baum, 172 AD2d 222). While the State has no real interest in only minor transactions (see, Money-Line, Inc. v Cunningham, 80 AD2d 60, 64), here, defendant Plotch did not merely buy stock in the corporation that would hold the motel and sign a personal guaranty, but played a crucial role in facilitating defendants Sheibars’ acquisition of the motel by ensuring that the couple would face no personal financial risk. We have considered the defendants’ remaining arguments and find them to be without merit. Concur — Sullivan, J. P., Ellerin, Asch and Tom, JJ.