ALEVY v. LLC (2008)

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered March 27, 2007, which, to the extent appealed from, denied defendant Isaac Uminer's motion to dismiss the breach of a written agreement, breach of an oral agreement and breach of fiduciary duty causes of action and the request for injunctive relief, unanimously affirmed, without costs.

Defendant had a contractual obligation not to disclose confidential information that he might have acquired during the course of his association with plaintiff, and he agreed to refrain, while working for plaintiff, from engaging in any activity, employment, or business arrangement that conflicted with plaintiff's interests.   Construing the pleadings liberally and accepting the facts alleged as true (Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ), the motion court properly found that the complaint states a cause of action for breach of a written agreement (see Minnelli v. Soumayah, 41 A.D.3d 388, 389, 839 N.Y.S.2d 727 [2007] ).

The complaint also states a cause of action for breach of an oral agreement, since, as the court found, the oral agreement did not modify the written agreement but was a separate, unrelated agreement and therefore not subject to General Obligations Law § 15-301 (see Rose v. Spa Realty Assoc., 42 N.Y.2d 338, 343, 397 N.Y.S.2d 922, 366 N.E.2d 1279 [1977] ).

As to the breach of fiduciary duty cause of action, plaintiff alleges that by the time defendant's employment was terminated, 12 years after he was hired, with no college education and no experience in the business of commercial mortgages, he was managing the day-to-day operations of the company and acting as its de facto chief operating officer.   These allegations describe ongoing conduct between the parties that may give rise to a fiduciary relationship (see Wiener v. Lazard Freres & Co., 241 A.D.2d 114, 122, 672 N.Y.S.2d 8 [1998] ).

The court properly declined to dismiss the prayer for injunctive relief.