        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1080
CA 15-00991
PRESENT: SMITH, J.P., DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


DORN ENERGY, LLC, ANDREW W. DORN, IV,
MATTHEW J. DORN, AND ANDREW W. DORN, JR.,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

NORA B. SULLIVAN, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


ZDARSKY SAWICKI & AGOSTINELLI LLP, BUFFALO (GUY J. AGOSTINELLI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WOODS OVIATT GILMAN LLP, BUFFALO (BRIAN D. GWITT OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Erie County (Timothy
J. Walker, A.J.), entered May 12, 2015. The judgment granted
plaintiffs’ renewed motion for summary judgment.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by granting judgment in favor of
plaintiffs as follows:

          It is ADJUDGED AND DECLARED that defendant has no
     ownership, membership, equitable, or other interest in
     plaintiff Dorn Energy LLC (Dorn Energy); that the individual
     plaintiffs did not and do not owe any fiduciary duties to
     defendant with respect to the economic opportunity at issue;
     that Dorn Energy did not and does not owe any fiduciary
     duties to nonparty, dissolved Great Lakes Energy Partners,
     LLC, formerly known as Great Lakes Solar Partners, LLC,
     formerly known as Energy Project Partners, LLC (Great
     Lakes); and that the individual plaintiffs did not breach
     any fiduciary duties to Great Lakes,

and as modified the judgment is affirmed without costs.

     Memorandum: Plaintiffs commenced this action pursuant to CPLR
3001, seeking various declarations to the effect that they breached no
fiduciary duty to defendant or to a now-dissolved Delaware limited
liability company, most recently known as Great Lakes Energy Partners,
LLC (Great Lakes), of which the individual plaintiffs and the
defendant were members. Defendant appeals from a judgment that
granted plaintiffs’ renewed motion for summary judgment on their
                                 -2-                          1080
                                                         CA 15-00991

claims and dismissed defendant’s counterclaims. Supreme Court
properly determined, for reasons stated in its decision, that
plaintiffs demonstrated as a matter of law that they have no liability
to defendant or to Great Lakes inasmuch as the individual plaintiffs
did not usurp an economic opportunity that “in fairness” belonged to
Great Lakes (Broz v Cellular Info. Sys., 673 A2d 148, 154-155, citing
Guth v Loft, 23 Del Ch 255, 267, 5 A2d 503, 509; see generally
Venturetek, L.P. v Rand Publ. Co., Inc., 39 AD3d 317, 317-318, lv
denied 10 NY3d 703). The court also properly determined that
defendant, in opposition to the motion, failed to raise any triable
issues of fact with respect to the claims or counterclaims. We add
only that the judgment must be modified to declare “the rights and
other legal relations of the parties” in accordance with plaintiffs’
request for relief (CPLR 3001; see Germeo v Village of Albion, 306
AD2d 928, 929, lv denied 100 NY2d 514; Northtown, Inc. v Vivacqua, 272
AD2d 917, 918).




Entered:   November 18, 2016                   Frances E. Cafarell
                                               Clerk of the Court
