Gover v. Escudo Construction Corp. , 733 N.Y.S.2d 894 ( 2001 )

—In an action to recover money owed pursuant to the terms of a joint venture agreement, the defendants Escudo Construction Corp. and Maria Fernandes appeal from a judgment of the Supreme Court, Suffolk County (Costello, J.), entered September 28, 2000, which, after a nonjury trial, is in favor of the plaintiff and against them in the principal sum of $25,000.

Ordered that the judgment is modified by deleting the provision thereof awarding the principal sum of $25,000 and substituting therefor a provision awarding the principal sum of $23,290; as so modified, the judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, to recompute the amount of interest due on the award.

There were sufficient facts on the record to support a finding that the appellants breached the fiduciary duty owed the plaintiff as their partner in an ongoing joint venture, even though the plaintiff’s complaint asserted a cause of action sounding in fraud and not breach of fiduciary duty (see, Diemer v Diemer, 8 NY2d 206, 212).

Nevertheless, the court erred in awarding the plaintiff the sum of $25,000, based upon a determination that the appellants’ expenses were $7,500. Instead, the evidence shows that these expenses totalled $9,210, $1,710 more than the amount calculated by the Supreme Court. Consequently, the award to the plaintiff must be reduced by $1,710.

The appellants’ remaining contentions are either unpreserved for appellate review or without merit. Santucci, J. P., McGinity, Luciano and Adams, JJ., concur.