Justice John Egan Jr.
The parties cross-appealed from a Supreme Court order partially granting defendants’ motions for summary judgment dismissal. Calabrese Bakeries’ president, Melino, entered into an agreement with Rockland Bakery president, Battaglia, to form a new corporation, B.M. Baking, to act as exclusive wholesale and retail distributors of Rockland’s baked goods. Melino was later incarcerated and Seeley stepped in to manage B.M. Melino claimed Seeley, and the corporations he set up, appropriated moneys and assets belonging to Calabrese or B.M. Melino sued, alleging 14 causes of action, including breach of fiduciary duty. The panel found plaintiffs did not perfect their appeal from supreme court’s prior order, and found plaintiffs’ claim the supreme court erred by failing to hold defendants’ summary judgment motion in abeyance pending further discovery meritless. Yet, it found plaintiffs’ claim the court erred in dismissing the breach of fiduciary claim had merit, noting documentary evidence presented by plaintiffs naming Battaglia as B.M.’s president, and corporate minutes where Seeley identified himself as Calabrese’s manager, were sufficient to raise questions of fact. The panel modified the order, permitting plaintiffs to proceed on their breach of fiduciary duty claim.
