MICHAEL MANGI SON AGENCY INC v. MANGI

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

MICHAEL MANGI & SON AGENCY, INC., appellant, v. Scott P. MANGI, et al., respondents.

Decided: July 25, 2005

THOMAS A. ADAMS, J.P., SONDRA MILLER, DAVID S. RITTER, and STEVEN W. FISHER, JJ. Corbally, Gartland and Rappleyea, LLP, Poughkeepsie, N.Y. (Anthony C. Carlini, Jr., of counsel), for appellant. McCabe & Mack, LLP, Poughkeepsie, N.Y. (Ricard R. DuVall and Arthur Anyuan Yuan of counsel), for respondent Scott P. Mangi. Vergilis, Stenger, Roberts, Pergament & Vigliotti, LLP, Wappingers Falls, N.Y. (Louis J. Vigliotti of counsel), and Erina R. Ponzini, Poughkeepsie, N.Y., for respondent Compensation Risk Managers, LLC (one brief filed).

In a consolidated action, inter alia, to recover damages for breach of fiduciary duty, conversion, and breach of contract, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated August 26, 2004, which denied its motion for summary judgment and granted the cross motion of the defendant Compensation Risk Managers, LLC, for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with one bill of costs payable to the defendants.

Contrary to the plaintiff's contentions, the Supreme Court properly denied its motion for summary judgment.   With respect to the defendant Compensation Risk Managers, LLC (hereinafter CRM), the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Although the plaintiff established its prima facie entitlement to judgment as a matter of law against the defendant Scott P. Mangi, in opposition, that defendant raised a triable issue of fact as to whether he breached his fiduciary duty to the plaintiff or usurped corporate opportunities (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Moreover, the Supreme Court properly granted the cross motion of CRM for summary judgment dismissing the complaint insofar as asserted against it.   CRM established prima facie its entitlement to judgment as a matter of law and, in opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v. City of New York, supra ).

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