UNITED COMMUNICATIONS CAPITAL CORP v. et al., Defendants. (1998)

 Defendant Steven McOmber alleged two counterclaims against plaintiff and defendants B. Edward Tibbits and United Computer Capital Corporation (Computer).   Supreme Court properly denied plaintiff's motion to dismiss those counterclaims against Tibbits and Computer pursuant to CPLR 3019(d) (see, Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3019:6, at 212).   We do not consider the alternative grounds for dismissal of the counterclaims raised by plaintiff in its motion to dismiss and brief on appeal.   Those alternative grounds are not before us because, pursuant to plaintiff's notice of appeal, plaintiff has appealed only from that part of the order denying its motion to dismiss the counterclaims against Tibbits and Computer pursuant to CPLR 3019(d).

 The court also properly denied McOmber's cross motion for summary judgment dismissing the complaint.   McOmber failed to meet his initial burden of establishing as a matter of law that he did not engage in misconduct constituting a breach of fiduciary duty or warranting the imposition of a constructive trust during the period of time that he was President and Chief Executive Officer of plaintiff.   His failure to make that showing required denial of his motion, “regardless of the sufficiency of the opposing papers” (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   In any event, plaintiff came forward with evidentiary proof demonstrating the existence of issues of fact requiring a trial.

Order unanimously affirmed without costs.

MEMORANDUM: