United States District Court, E.D. New York
Michael A. Haskel, Esq., Brandon Maxwell Zlotnick, Esq., Law Offices of Michael A. Haskel, Mineola, NY, Leonid Gekhman, Esq., Law Offices of Michael A. Haskel, Garden City, NY, for Plaintiff.
James R. Luca, pro se. Merrick, NY, for Defendants, James R. Luca
Eric Forte, pro se Oceanside, NY, for Defendants, Eric Forte.
David Jacobson, pro se Oceanside, NY, for Defendants, David Jacobson.
Kenneth S. Pelsinger, Esq., Kenneth S. Pelsinger, PC, Levittown, NY, for Defendants, Candice Giaccone, Shaw Mortgage Grp., & BLM Consulting.
Kristopher M. Dennis, Esq., Jonathan B. Bruno, Esq., Kaufman Borjecst & Ryan LLP, New York, NY, for Defendants, Michael J. Moberg & Moberg & Assocs.
Keith LaVallee, Esq., LaVallee & LaVallee, P.C., Farmingdale, NY, for Defendants, Carlo Dellapina & Medallion Abstract. for Defendants, Shaw Elite, LLC & Simply Elite, LLC: No appearances.
MEMORANDUM & ORDER
JOANNA SEYBERT, District Judge.
Plaintiff Fairfield Financial Mortgage Group, Inc. ("Plaintiff") commenced this action against pro se defendant James R. Luca ("Luca"), a former employee of Plaintiff, alleging breach of contract and other business-related torts. Plaintiff later amended the original complaint to assert various business-related torts against the remaining defendants. Currently pending before the Court are a motion for partial summary judgment filed by Plaintiff (Docket Entry 314) and cross-motions for summary judgment filed by defendants Luca, Michael J. Moberg and Moberg & Associates, PLLC (collectively, the "Moberg Defendants"), and Carlo Dellapina ("Dellapina") and Medallion Abstract, LLC ("Medallion, " and together with Luca, the Moberg Defendants, and Dellapina, "Defendants") (Docket Entries 325, 326, 332).
The undersigned referred these motions to Magistrate Judge William D. Wall, who issued a Report and Recommendation ("R&R") recommending denial of each of the motions due to the presence of disputed issues of material fact, with the exception of the Moberg Defendants' request to strike Plaintiff's claim for attorneys' fees, which Judge Wall recommends should be granted. (Docket Entry 363.) Plaintiff, Luca, and the Moberg Defendants have filed objections to the R&R. (Docket Entries 364, 365, 370.) For the following reasons, the Court ADOPTS the R&R in its entirety.
I. Factual Background
Plaintiff is a Connecticut-based, residential mortgage lender and broker that operated a branch office in Uniondale, New York between April 2005 and July 31, 2006. (Pl.'s 56.1 Stmt., Docket Entry 315, ¶¶ 6, 41.) In April 2005, Plaintiff hired Luca "as the employee responsible for day-to-day operations" of the Uniondale office. (Pl.'s 56.1 Stmt. ¶ 6.) Luca and Plaintiff allegedly entered into a branch manager agreement (the "BMA") governing Plaintiff's employment on or about January 17, 2006. (Pl.'s 56.1 Stmt. ¶ 9; Luca's 56.1 Counterstmt., Docket Entry 304, ¶ 10.)
Plaintiff alleges that Luca and his wife, defendant Candice Giaccone ("Giaccone"), who also worked in Plaintiff's Uniondale office, collaborated with two fellow employees, Eric Forte and David Jacobson (also defendants herein), to divert Plaintiff's business to a competitor, defendant Shaw Mortgage Group ("Shaw"), a company in which Luca allegedly opened a branch office to receive the diverted business. (See Second Amended Complaint ("SAC"), Docket Entry 83, ¶¶ 33, 35-37.) Based on this alleged activity, the Second Amended Complaint asserts breach of contract and unfair competition claims against Luca and breach of fiduciary duty claims against both Luca and Giaccone. (SAC ¶¶ 45-60, 88-103.) Plaintiff also contends that the Moberg Defendants, who acted as Plaintiff's closing attorneys, assisted in the diversion of loans from Plaintiff to Shaw and that this amounts to aiding and abetting Luca's breach of fiduciary duty. (SAC ¶¶ 62-64.)
Plaintiff further claims that during his employment with Plaintiff, Luca, through his uncle, Dellapina, opened a title company, Medallion, with the assistance of the Moberg Defendants. (SAC ¶¶ 26-27.) Plaintiff alleges that Luca and Giaccone then referred title work to Medallion so that they could receive compensation for the referrals. (SAC ¶ 28.) The Second Amended Complaint alleges that Luca breached his fiduciary duty to Plaintiff by failing to disclose his interest in Medallion and by receiving secret profits from Medallion. (SAC ¶ 52.) The Second Amended Complaint also alleges that the Moberg Defendants, Medallion, and Dellapina aided and abetted Luca's alleged breach ...