53 West 53rd, Inc. v. 53rd Street Associates

Order, Supreme Court, New York County (Harold Tompkins, J.), entered March 26, 1997, which [440] denied plaintiff’s motion for summary judgment on the complaint to quiet title, dismissing the counterclaims and canceling the subject notice of pendency, unanimously affirmed, with costs. We agree that defendants have raised triable factual issues as to the existence and breach of a fiduciary duty, such that we view the circumstances broadly and with utmost concern for fairness (see, Schwartz v Lois Assocs., 149 AD2d 307, 310). Under these circumstances, summary judgment based solely on the contract language urged by plaintiff is inappropriate (see, Sandler v Fishman, 157 AD2d 708, 709). Concur—Murphy, P. J., Sullivan, Ellerin and Williams, JJ.