CALABRO v. FLEISHELL


48 A.D.3d 206 (2008)

851 N.Y.S.2d 155

GREGORY G. CALABRO, Individually and on Behalf of Himself and All Other Shareholders of Calabro & Fleishell, P.C., Similarly Situated, Appellant, v. THOMAS S. FLEISHELL, Respondent.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided February 5, 2008.


The grant of summary judgment on the sixth counterclaim was premature. There are factual issues as to whether plaintiff voluntarily abandoned the premises, and whether he was under any obligation, under these circumstances, to execute the surrender agreement.

Summary judgment was properly denied on the third cause of action. A claim for fraud cannot duplicate a claim for breach of fiduciary duty (see Frydman & Co. v Credit Suisse First Boston Corp.,

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