RSSM CPA LLP v. << (2018)

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered January 9, 2017, which, to the extent appealed from as limited by the briefs, granted defendant Bernstein's motion for partial summary judgment on his first counterclaim to the extent it seeks the balance of his capital account and dismissing in part the causes of action for breach of fiduciary duty, breach of the duty of loyalty, tortious interference with contract, and tortious interference with prospective contractual relations as against him, unanimously affirmed, without costs.

Defendant established prima facie on his breach of contract counterclaim that he was entitled to the balance of his capital account after leaving plaintiff's employ through his employment agreement, which provided that, upon his withdrawal from plaintiff “for any reason,” plaintiff “shall pay to” defendant “the balance of his capital account” (see generally Bailey v. Fish & Neave, 8 N.Y.3d 523, 528, 837 N.Y.S.2d 600, 868 N.E.2d 956 [2007] ).  In opposition, plaintiff failed to raise an issue of fact.

The parts of the breach of fiduciary duty and breach of the duty of loyalty causes of action based on allegations that defendant used plaintiff's confidential information to solicit clients and personnel away from plaintiff and that defendant improperly wrote off billable hours for clients and/or capped their bills are insufficiently particularized to raise an issue of fact, since they do not identify any of the clients or personnel referred to (see CPLR 3016[b];  Schroeder v. Pinterest Inc., 133 A.D.3d 12, 25, 17 N.Y.S.3d 678 [1st Dept. 2015] ).

The parts of the cause of action for tortious interference with contract not based on the other individual defendants' contracts do not identify the contracts that were interfered with and therefore fail to raise an issue of fact as to their existence (see Little Rest Twelve, Inc. v. Zajic, 137 A.D.3d 540, 541, 27 N.Y.S.3d 142 [1st Dept. 2016] ).

The parts of the cause of action for tortious interference with prospective economic relationships based on relationships with potential clients or unidentified former personnel of plaintiff are insufficient to show that plaintiff would have obtained those contracts but for defendant's tortious interference (see Vigoda v. DCA Prods. Plus, 293 A.D.2d 265, 266–267, 741 N.Y.S.2d 20 [1st Dept. 2002] ).

We have considered plaintiff's remaining arguments and find them unavailing.