GENTRY BEACH v. Vollero Beach Capital Partners, et al., Defendants. (2026)

Order, Supreme Court, New York County (Andrea Masley, J.), entered April 15, 2025, which, to the extent appealed from, granted defendants' posttrial motion under CPLR 4404(a) and reinstated the five counterclaims that were dismissed by a jury, set aside the jury verdict, ordered a new trial on the counterclaim against plaintiff Gentry Beach for defamation, and ordered a new trial on damages against counterclaim defendant Gary Beach for defamation, unanimously reversed, on the law, without costs, the CPLR 4404(a) motion denied, and the jury verdict reinstated.

Plaintiffs Gentry T. Beach and Robert A. Vollero allege that they had an oral employment agreement with defendants/counterclaim plaintiffs Touradji Capital Management, LP (TCM), a commodities hedge fund, and Paul Touradji, TCM's founder.  Specifically, plaintiffs contend that, in addition to their salaries, they were entitled to a fixed percentage of the gross trading profits of the TMC portfolios that they managed, but that defendants failed to pay them the bonuses they earned.  After nearly two decades of litigation, including one previous trial where the verdict was ultimately overturned by this Court on appeal (see Beach v Touradji Capital Mgt., LP, 179 AD3d 474 [1st Dept 2020] ), the jury in the second month-long trial deadlocked on plaintiffs' claim for breach of contract (and thus did not address defendants' faithless servant defense), but rejected all five of defendants' counterclaims for breach of fiduciary duties, aiding and abetting breach of fiduciary duties, unfair competition, misappropriation of trade secrets, and defamation.  Counterclaim defendant Gary Beach defaulted on the defamation claim, and the jury awarded $2,400,002.00 in compensatory damages to defendants.

Defendants are not entitled to reinstatement of their counterclaims, which were each unequivocally rejected by the jury after a lengthy trial.  Pursuant to CPLR 4404(a), a court may set aside a jury verdict, or order a new trial, where “the verdict is contrary to the weight of the evidence,” or “in the interest of justice.”  In making this determination, the court must proceed with caution, because “in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict” (McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206 [1st Dept 2004] [internal quotation marks omitted] ).  Thus, a verdict should only be set aside if the evidence is so in favor of the moving party that the verdict “could not have been reached on any fair interpretation of the evidence” (Grassi v Ulrich, 87 NY2d 954, 956 [1996];  Goldstein v Snyder, 3 AD3d 332, 333 [1st Dept 2004] ), or in the interests of justice due to “errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise” (see Morency v Horizon Transp.  Servs., Inc., 139 AD3d 1021, 1023 [2d Dept 2016], lv dismissed 28 NY3d 947 [2016] ).

Defendants did not move to set aside the jury's verdict on the counterclaims based on an argument that it contradicted a fair interpretation of the evidence or that they were deprived of a fair trial.  Rather, defendants contend that the counterclaims are so inextricably interwoven with plaintiffs' breach of contract claim that they, too, must be retried.  This argument is unavailing and has no support in the CPLR or case law, as the concept of inextricably interwoven claims is generally applied in personal injury cases and not in breach of contract or employment cases, and the cases cited do not compel affirmance under these circumstances (see Mercado v City of New York, 25 AD2d 75 [1st Dept 1996];  see also Bracker v New York City Tr. Auth., 112 AD3d 520 [1st Dept 2013] ).  Indeed, in Mercado, the court suggested that even in the personal injury context overlapping facts alone are insufficient to require a new trial of claims properly decided by a jury (see Mercado, 25 A.D.2d at 77).

Further, defendants contend that without reinstatement of their counterclaims, a new trial may lead to an inconsistent verdict if the jury finds in favor of defendants on their faithless servant defense while the prior jury rejected defendants' counterclaims, including but not limited to their breach of fiduciary duty counterclaim.  While we recognize that the jury did not reach the faithless servant defense, and that the facts underlying the defense and the counterclaims substantially overlap, this presents, at most, a theoretical risk of inconsistent verdicts at the third trial.  This alone is insufficient to require reinstatement of the counterclaims, which would deprive plaintiffs of “the benefits of a favorable jury verdict” (McDermott, 9 AD3d at 206;  see also Mercado, 25 A.D.2d at 77).

We reject plaintiffs' inverse argument, raised for the first time substantively in reply, that the jury's rejection of defendants' counterclaims necessarily warrants preclusion of defendants' faithless servant defense.  To the extent plaintiffs argue that collateral estoppel applies, this doctrine is inapplicable given that no final judgment has been rendered (see Wilson v City of New York, 161 AD3d 1212, 1216 [2d Dept 2018] ).  Further, Supreme Court correctly noted that plaintiffs did not make an affirmative motion to dismiss the faithless servant defense, and thus any argument that the law of the case doctrine is applicable was not properly preserved, and need not be addressed substantively on appeal (see Lucian v Schwartz, 55 AD3d 687, 689 [2d Dept 2008], lv denied 12 NY3d 703 [2009] [having failed to affirmatively move for a mistrial based on improper comments made at summation, plaintiffs failed to preserve their arguments for appellate review] ).

However, while Supreme Court properly rejected plaintiff's preclusion arguments, it improperly concluded that plaintiff's failure to preserve its preclusion arguments and the theoretical risk of inconsistent verdicts should result in the extraordinary relief of disturbing the jury verdict on the counterclaims following a month-long trial.

As for defendants' counterclaim for defamation against plaintiff Gentry Beach, the trial court improvidently set aside the jury's verdict as against the weight of the evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 498–499 [1978] ).  The jury's determination that Gentry Beach never “published” the defamatory report to his father, Gary Beach, is supported by his testimony that, although he commissioned the report through his attorney, he did not facilitate its transmission.  The jury was entitled to credit this testimony (see Haiyan Lu v Spinelli, 44 AD3d 546, 546 [1st Dept 2007], lv denied 10 NY3d 716 [2008] ).  There is also no basis to set aside the jury's award of $400,000 in compensatory damages and $2 million in punitive damages against Gary Beach and in favor of defendants for defamation (see Grassi, 87 NY2d at 956;  Goldstein, 3 AD3d at 333).

Finally, plaintiffs' request to remand to a different Justice is unpreserved for our review (see William Kaufman Org. v Graham & James, 269 AD2d 171, 174 [1st Dept 2000] ).  In any event, judicial remarks that are “critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge” (Liteky v United States, 510 US 540, 555–565 [1994];  Fulton Mkt. Retail Fish Inc. v Todman, Nachamie, Spizz & Johns, P.C., 158 AD3d 502, 502 [1st Dept 2018] ).