Varick Homes Housing & Development Fund Co. v. Jones

In an action for an accounting, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Orange County (Benson, J.H.O.), dated May 10, 1996, as (1) denied those branches of his motion which were for summary judgment dismissing the complaint and to recover damages in the sum of $60,375 on his counterclaim, and (2) granted the plaintiffs cross motion for an accounting. Ordered that the order is affirmed insofar as appealed from, without costs or disbursements. The plaintiff demonstrated entitlement to an accounting as a 492 matter of law based on the fiduciary relationship of the parties and the undisputed evidence that the defendant breached his fiduciary duty by making unauthorized expenditures which may have resulted in the dissipation of assets (see, Fur & Wool Trading Co. v George I. Fox, Inc., 245 NY 215, 217-218; Ordinary Guy v Juniper Releasing, 199 AD2d 251; Palazzo v Palazzo, 121 AD2d 261, 265). As for the defendant’s counterclaim, we conclude that he failed to establish entitlement, as a matter of law, to the unpaid management fees (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562). Rosenblatt, J. P., Thompson, Pizzuto and Friedmann, JJ., concur.