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Robert Aroesty v. Farash Corporation

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


December 30, 2010

ROBERT AROESTY,
PLAINTIFF-APPELLANT,
v.
FARASH CORPORATION, MARK ZUPAN,
MARK FOERSTER AND ERLAND E. KAILBOURNE,
DEFENDANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered October 1, 2009 in an action for wrongful termination of employment. The order, among other things, denied plaintiff's motion to strike defendant Farash Corporation's counterclaims.

Aroesty v Farash Corp.

Decided on

Appellate Division, Fourth Judicial Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 30, 2010

PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, GREEN, AND GORSKI, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed with costs.

Memorandum: Plaintiff commenced this action alleging, inter alia, that he was unlawfully terminated from his employment with defendants, and defendants asserted six counterclaims in their answer, including breach of fiduciary duty and unjust enrichment. Supreme Court properly denied that part of plaintiff's motion seeking dismissal of the counterclaims pursuant to CPLR 3211 (a) (5) inasmuch as plaintiff failed to meet his initial burden of establishing that any of the counterclaims is time-barred (see generally Morris v Gianelli, 71 AD3d 965, 967). The court also properly denied that part of plaintiff's motion seeking dismissal of the counterclaims pursuant to CPLR 3211 (a) (7). Accepting as true the facts alleged in the counterclaims and in opposition to the motion, and according defendants the benefit of every possible favorable inference, we conclude that each counterclaim states a cause of action (see generally CPLR 3013; Jackal Holdings, LLC v JSS Holding Corp., 23 AD3d 435).

Entered: December 30, 2010

Patricia L. Morgan Clerk of the Court

20101230

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