Bueno v. Charge & Ride Taxi, Inc. , 606 N.Y.S.2d 14 ( 1993 )

In two related actions to recover damages, inter alia, for breach of fiduciary duty, brought by different plaintiffs against the same defendants, the defendants appeal from an order of the Supreme Court, Queens County (Leviss, J.), dated September 3, 1991, which denied their motion for summary judgment.

Ordered that the order is affirmed, with costs.

The defendant Charge & Ride Taxi, Inc., operates a radio-dispatched car service. The plaintiffs purchased "radio rights” from Charge & Ride Taxi, Inc., which entitled them to obtain fares through its dispatcher. Several years later, the plaintiffs commenced the instant actions, alleging, inter alia, that the defendants breached a fiduciary duty by failing to resell the plaintiffs’ "radio rights”. The defendants moved for summary judgment, on the ground that the plaintiffs’ causes of action were barred by Business Corporation Law § 513 and UCC 8-319. We find that the defendants failed to establish entitlement to judgment in their favor as a matter of law. Therefore, summary judgment was properly denied (see, Zuckerman v City of New York, 49 NY2d 557).

The record does not support the defendants’ contention that the plaintiffs’ "radio rights” were actually shares of stock (see, Business Corporation Law § 912 [a] [14]) or that the defendants are cooperative corporations to which the provisions of the Business Corporation Law apply (see, Cooperative Corporations Law §§ 3, 5). Similarly, the defendants may not rely on the Statute of Frauds defense in UCC 8-319, as they failed to establish that the “radio rights” were securities as defined by UCC 8-102.

We have reviewed the defendants’ remaining contentions and find them to be without merit.

The plaintiffs’ request for sanctions against the defendants on the ground that the appeal is frivolous is denied (see, 22 NYCRR 130-1.1 [c]). Thompson, J. P., Balletta, O’Brien and Santucci, JJ., concur.