Genger v. Genger

• Citation: 147 A.D.3d 443,2017 N.Y. Slip Op. 00923,46 N.Y.S.3d 413 (Mem)
• Parties: Orly GENGER, etc., Plaintiff–Respondent, v. Dalia GENGER, et al., Defendants, Sagi Genger, et al., Defendants–Appellants.
• Decision Date: 07 February 2017
• Court: New York Supreme Court Appellate Division

147 A.D.3d 443

46 N.Y.S.3d 413 (Mem)

2017 N.Y. Slip Op. 00923

Orly GENGER, etc., Plaintiff–Respondent,

v. Dalia GENGER, et al., Defendants,Sagi Genger, et al., Defendants–Appellants.

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

Feb. 7, 2017.

Kelley Drye & Warren LLP, New York (John Dellaportas of counsel), for Sagi Genger, appellant.

Ira Daniel Tokayer, New York, for D & K GP LLC, appellant.

Kasowitz Benson Torres & Friedman LLP, New York (Michael Paul Bowen of counsel), for respondent.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered April 12, 2016, which granted plaintiff's motion for partial summary judgment, and denied defendants-appellants' cross motion for summary judgment, unanimously affirmed, with costs.

Plaintiff is entitled to summary judgment on the breach of fiduciary duty cause of action (Pokoik v. Pokoik, 115 A.D.3d 428, 429, 982 N.Y.S.2d 67 [1st Dept.2014] ). The evidence demonstrates that the subject transaction, in which defendant Sagi Genger was on both sides, was not "entirely fair" under Delaware law (Cambridge Capital Real Estate Invs., LLC v. Archstone Enter. LP, 137 A.D.3d 593, 595, 28 N.Y.S.3d 33 [1st Dept.2016] ; R2 Invs., LDC v. Icahn, 117 A.D.3d 632, 633, 987 N.Y.S.2d 31 [1st Dept.2014] ).

Plaintiff made a prima facie showing that the UCC sale of the TPR shares was not commercially reasonable (UCC 9–610 ), and defendants failed to raise an issue of fact.

The motion court's grant of summary judgment to plaintiff on the replevin cause of action was appropriate, notwithstanding that the court directed that the value of the shares would be awarded rather than ordering the return of the shares (CPLR 7108[a] ).

We have considered defendants' remaining contentions and find them unavailing.

TOM, J.P., RENWICK, SAXE, GESMER, JJ., concur.