The opinion of the court was delivered by: Milton Pollack, Senior District Judge.
Plaintiff Battle Fowler, as Receiver and Liquidating Trustee
of Brignoli, Curley & Roberts Associates ("BCR"), has filed
suit to recover certain sums paid by BCR to defendants. The
Receiver moved for an order pursuant to Rule 56 Fed.R.Civ.P.
granting plaintiff summary judgment on three of the four Claims
for Relief. For the reasons appearing hereinafter and pursuant
to Rule 54(b) Fed.R.Civ.P., summary judgment is granted on the
First and Second Claims for Relief and is denied on the Fourth
Claim for Relief.
A derivative action entitled Curley v. Brignoli Curley &
Roberts Assoc., 88 Civ. 5307(MP) (the "Curley Action") was
brought by certain limited partners of BCR against Richard
Brignoli; Brignoli & Curley Inc. ("BCI"); and BCR as a
necessary party. BCI was BCR's corporate General Partner.
Richard Brignoli was majority shareholder, Chief Executive
Officer, President and Chairman of the Board of BCI. Curley v.
Brignoli, Curley & Roberts Assoc., 746 F. Supp. 1208, 1210-11
(S.D.N.Y. 1989), aff'd, 915 F.2d 81 (2d Cir. 1990).
This Court in its post-trial Opinion of August 4, 1989
removed BCI as General Partner of BCR after finding "Richard
Brignoli . . . has been guilty of and has caused BCI to be
guilty of such crass and autocratic conduct in the service of
his selfish interest and in derogation of the interests of the
limited partnership so as to affect prejudicially the carrying
on of the business as a partnership. . . . The evidence adduced
at trial amply established glaring misconduct by Brignoli and
BCI." Id. Furthermore, this Court found BCR suffered
substantial damage as a result of Brignoli's disloyalty
including a forfeiture of a $175,000 certificate of deposit and
excessive or unwarranted payments to Brignoli and Brignoli
Models, Inc. ("BMI"), and that from the time Brignoli fired
as BCI's chief officer in December 1987, Brignoli operated BCR
to serve only his self-interest until BCI's removal as General
Partner in August 1989. Curley, 746 F. Supp. at 1215-19.
After a vote in favor of dissolution, the Court entered
judgment dated August 28, 1989 ordering dissolution of BCR and
appointed Battle Fowler as Receiver.
The Court of Appeals dropped BCR as a party, recharacterized
the action as a class action, and affirmed the District Court's
decision on the merits. Curley v. Brignoli, Curley & Roberts
Assoc., 915 F.2d 81 (2d Cir. 1990).
The Receiver filed the complaint in this action on December
8, 1989 seeking the following relief:
1) First Claim for Relief — against Brignoli for all salary
paid Brignoli by BCR while he was in breach of his fiduciary
duties, in the amount of $369,229;
2) Second Claim for Relief — against Brignoli for
reimbursement of legal costs paid by BCR for the benefit of
Brignoli in connection with the Curley v. Brignoli, 88 Civ.
5307(MP), action, in the amount of $367,337.03;
3) Third Claim for Relief — against Arie David for
reimbursement of payments made by BCR for legal services that
were allegedly not performed, in the amount of $132,500.
4) Fourth Claim for Relief — against Brignoli and BMI,
reimbursement in the amount of $159,342.66 for excessive
payments made to BMI for "Stock Sleuth", a trading analysis
computer program, by reason of Brignoli's self-dealing in
The Receiver moves for summary judgment on the First, Second,