Smallwood v. Lupoli

• Decision Date: 12 June 2013
• Citation: Smallwood v. Lupoli, 107 A.D.3d 782, 968 N.Y.S.2d 515, 2013 N.Y. Slip Op. 4325 (N.Y. App. Div. 2013)
• Parties: Keishma SMALLWOOD, etc., et al., appellants, v. Matthew M. LUPOLI, et al., respondents (and a third-party action).
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 782

968 N.Y.S.2d 515

2013 N.Y. Slip Op. 04325

Keishma SMALLWOOD, etc., et al., appellants,

v.Matthew M. LUPOLI, et al., respondents(and a third-party action).

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

June 12, 2013.

Bailey & Sherman, P.C., Douglaston, N.Y. (Edward G. Bailey and Anthony V. Gentile of counsel), for appellants.

Patrick F. Broderick, Bayside, N.Y., for respondentsMatthew M. Lupoli, Albert Basal, Fred Basal, Tony Zadeh, Plaza Homes, LLC, Universal Development, LLC, and George J. Brucker.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, LEONARD B. AUSTIN, and SYLVIA HINDS–RADIX, JJ.

In an action, inter alia, to recover damages for breach of fiduciary duty, conspiracy, fraud, violation of Judiciary Law § 487(1), prima facie tort, and conversion, the plaintiffs appeal (1) from so much of an order of the Supreme Court, Queens County(McDonald, J.), entered December 28, 2011, as granted that branch of the motion of the defendantsMatthew M. Lupoli, Albert Basal, Fred Basal, Tony Zadeh, Plaza Homes, LLC, Universal Development, LLC, and George J. Brucker which was for summary judgment dismissing the complaint insofar as asserted against them, and (2) from so much of an order of the same court, also entered December 28, 2011, as granted that branch of the motion of the defendantsPeter M. Redmond and Peter M. Redmond, P.C. which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the first order entered December 28, 2011, is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendantsMatthew M. Lupoli, Albert Basal, Fred Basal, Tony Zadeh, Plaza Homes, LLC, Universal Development, LLC, and George J. Brucker which was for summary judgment dismissing the cause of action to recover damages for breach of fiduciary duty insofar as asserted against them and so much of the cause of action sounding in conspiracy as relates thereto, and substituting therefor a provision denying that branch of the motion; as so modified, that order is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the second order entered December 28, 2011, is affirmed insofar as appealed from, without costs or disbursements.

The defendantMatthew M. Lupoli was appointed guardian over, inter alia, the real property owned by two wards, Keishma Smallwood and Alice Dailyda.Edith Hills, the guardian appointed over the person of Keishma Smallwood, and Alice Collins, the daughter of Alice Dailyda, commenced this action, contending that Lupoli breached his fiduciary duty by ignoring legitimate purchase offers for the subject property, and instead selling them at below market value to pre-selected bidders—the defendantsPlaza Homes, LLC(hereinafter Plaza Homes), and Universal Development, LLC(hereinafter Universal)—which then re-sold the subject property for a substantial profit.The complaint contains causes of action sounding in, inter alia, breach of fiduciary duty, conspiracy, violation of Judiciary Law § 487, prima facie tort, and conversion against Lupoli and his attorneys Peter M. Redmond and Peter M. Redmond, P.C.(hereinafter together the Redmond defendants), and, among others, the purchasers of the subject property.The defendants moved for summary judgment dismissing the complaint and the plaintiffs opposed the motions, submitting evidence in admissible form demonstrating that potential buyers expressed interest in the subject property, and those expressions of interest were ignored or rebuffed by Lupoli, who instead sold the properties at public auction at lesser prices.In two separate orders, both entered December 28, 2011, the Supreme Court granted the defendants' motions for summary judgment dismissing the complaint.

The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant's misconduct ( seePalmetto Partners, L.P. v. AJW Qualified Partners, LLC,83 A.D.3d 804, 807, 921 N.Y.S.2d...