CONSOLIDATED EDISON COMPANY OF NEW YORK INC v. Anthony Milanese et al., Defendants. (2024)

Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered September 13, 2022, which denied Con Edison's motion to dismiss the fourth counterclaim for an accounting asserted by defendant East Coast Power & Gas LLC, unanimously affirmed, with costs.

Although the parties focus on whether a fiduciary relationship existed sufficient to warrant an equitable accounting, this is an action for money damages, i.e., an action at law (see Cadwalder Wickersham & Taft v Spinale, 177 A.D.2d 315 [1st Dept 1991]).  The subject complaint is a breach of contract action seeking money damages for amounts allegedly owed to Con Edison by East Coast, and the accounting was “merely a method to determine the amount of monetary damages,” with the equitable fourth counterclaim for an accounting “primarily incidental to the defenses at law” (Abrams v. Rogers, 195 A.D.2d 349, 350 [1st Dept 1993]).  Further, Con Edison provided two accountings prior to the court's order without objection (see Corcoran v. Ardra Ins. Co., 166 A.D.2d 250, 251 [1st Dept 1990]).

Contrary to Con Edison's contention, Supreme Court did not improperly grant the ultimate relief sought by East Coast's accounting counterclaim as part of discovery (Macklowe v. 42nd St. Dev. Corp., 157 A.D.2d 566, 567 [1st Dept 1990]), as this was an action for money damages, whereby Supreme Court repeatedly ordered an accounting of “comprehensible, reliable data,” by which the parties “can intelligently discuss a mediated resolution of their disputes.”