ROBERT AROESTY PLAINTIFF APPELLANT v. FARASH CORPORATION MARK ZUPAN MARK FOERSTER AND ERLAND KAILBOURNE DEFENDANTS RESPONDENTS (2010)

Supreme Court, Appellate Division, Fourth Department, New York.

ROBERT AROESTY, PLAINTIFF-APPELLANT, v. FARASH CORPORATION, MARK ZUPAN, MARK FOERSTER AND ERLAND E. KAILBOURNE, DEFENDANTS-RESPONDENTS.

CA 10-01552

Decided: December 30, 2010

PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, GREEN, AND GORSKI, JJ.

LAW OFFICES OF JAMES MORRIS, BUFFALO (WILLARD M. POTTLE, JR., OF COUNSEL), FOR PLAINTIFF-APPELLANT. HARTER SECREST & EMERY LLP, ROCHESTER (F. PAUL GREENE OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed with costs.

Memorandum: Plaintiff commenced this action alleging, inter alia, that he was unlawfully terminated from his employment with defendants, and defendants asserted six counterclaims in their answer, including breach of fiduciary duty and unjust enrichment. Supreme Court properly denied that part of plaintiff's motion seeking dismissal of the counterclaims pursuant to CPLR 3211(a)(5) inasmuch as plaintiff failed to meet his initial burden of establishing that any of the counterclaims is time-barred (see generally Morris v. Gianelli, 71 AD3d 965, 967). The court also properly denied that part of plaintiff's motion seeking dismissal of the counterclaims pursuant to CPLR 3211(a)(7). Accepting as true the facts alleged in the counterclaims and in opposition to the motion, and according defendants the benefit of every possible favorable inference, we conclude that each counterclaim states a cause of action (see generally CPLR 3013; Jackal Holdings, LLC v. JSS Holding Corp., 23 AD3d 435).

Patricia L. Morgan

Clerk of the Court

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