In this action for, inter alia, breach of contract, plaintiff moves for partial summary judgment on the complaint, and defendant Charles R. Van Nostrand cross-moves for summary judgment on his counterclaims (motion sequence number 003). For the following reasons, the motion is granted in part and denied in part, and the cross motion is denied.

Plaintiff Samuel French, Inc. (French) is New Jersey corporation licensed to do business in New York State, and engaged in the business of theatrical production and management. See Notice of Motion, Solovay Affirmation (second amended complaint), ¶ 1. Defendant Charles R. Van Nostrand (Van Nostrand) is a former president of French. Id., ¶ 2. Co-defendant DWS Scudder (Scudder) is a New York State licensed brokerage corporation with which French maintains an account (the Scudder account). Id., ¶ 4.

French's original president was Van Nostrand's uncle, M. Abbott Van Nostrand (MAVN). Id., ¶ 7. On December 10, 1986, after MAVN had expressed his desire to retire, French's board of directors (the board) adopted a resolution (the MAVN resolution) that provided, in pertinent part, that French would open and maintain the Scudder account "for the purpose of providing security for future retirement payments" to MAVN (or his wife, Julia Eaton Van Nostrand [JEVN], should he predecease her), for a period of 10 years. Id., ¶¶ 5-6; Exhibit A. French notes that the board's resolution required that two board members - Van Nostrand and non-party board member Merle Cosgrove (Cosgrove) - be named co-administrators of the Scudder account.^[FN1] Id., ¶ 8. However, French also alleges that Van Nostrand is, and improperly remains, the only person with signatory authority over the Scudder account. Id. ¶ 17-18. French further alleges that, after the 10-year period for MAVN to receive retirement payments had expired, Van Nostrand improperly withdrew $50,000.00 in funds from the Scudder account, after which Scudder froze all access to the account. Id., ¶ 18. French offers copies of two pieces of correspondence from Van Nostrand wherein he acknowledges that French is the owner of the Scudder account, and that he is either a "co-administrator" or a "trustee" of the account. Id. ¶¶ 8, 9; Exhibits B, C. French presents no documentary evidence, however, regarding the amounts that Van Nostrand allegedly withdrew.

Van Nostrand states that he became president of French in 1992, was issued an employment contract (the Van Nostrand employment contract) on October 19, 1995, and retired on October 19, 2006. See Notice of Cross Motion, Van Nostrand Affidavit, ¶¶ 3, 7; Exhibit B. Van Nostrand notes that the Van Nostrand employment contract contains the same retirement payment provision as the MAVR resolution. Id., ¶ 4. Van Nostrand alleges that, now that he has retired as French's president, French is obligated to pay him certain fixed monthly retirement compensation from the Scudder account, and that French has improperly failed to do so in violation of the Van Nostrand employment contract. Id., ¶¶ 7-9. French responds that it has no such obligation, because Van Nostrand is not "completely retired" within the definition that the board ascribed to that phrase in both the Van Nostrand employment contract and the board resolution that adopted that contract. See Solovay Reply Affirmation, ¶ 7. In any case, neither party now has access to the funds in the Scudder account.

French initially commenced this action on July 16, 2008, but later served a second [*3]amended complaint on May 7, 2009, after the parties had engaged in certain motion practice (motion sequence numbers 001, 002). French's second amended complaint sets forth causes of action for: 1) defamation; 2) a declaratory judgment; 3) conversion; and 4) breach of fiduciary duties. See Notice of Motion, Solovay Affirmation (second amended complaint). On June 24, 2009, Van Nostrand served an answer that set forth three counterclaims for breach of contract/anticipatory breach of contract, and three affirmative defenses. See Notice of Cross Motion, Schwartz Affirmation, Exhibits E, F. French now moves for partial summary judgment on its second cause of action for declaratory relief, while Van Nostrand cross-moves for summary judgment and declaratory relief on his counterclaims (motion sequence number 003)^[FN2].

When seeking summary judgment, the moving party bears the burden of proving, by competent, admissible evidence, that no material and triable issues of fact exist. See e.g. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985); Sokolow, Dunaud, Mercadier & Carreras LLP v Lacher, 299 AD2d 64 (1st Dept 2002). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action. See e.g. Zuckerman v City of New York, 49 NY2d 557 (1980); Pemberton v New York City Tr. Auth., 304 AD2d 340 (1st Dept 2003). Here, French is entitled to partial summary judgment on its second cause of action, but Van Nostrand is not entitled to summary judgment on his counterclaims.

French's Motion

As previously mentioned, French seeks partial summary judgment on its second cause of action for a declaratory judgment. Pursuant to CPLR 3001, declaratory judgment is a discretionary remedy which may be granted "as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed." CPLR 3001; see e.g. Jenkins v State of New York Div. of Hous. & Community Renewal, 264 AD2d 681 (1st Dept 1999). Here, French seeks a declaration that: 1) it is the owner of the Scudder account; 2) that Scudder be directed to turn over the funds in the account to French; and 3) that Van Nostrand be directed to return the amounts that he has withdrawn from the account. See Notice of Motion (second amended complaint ¶¶ 40-44). Upon the submissions, French is entitled to the first and second declarations at this juncture, but not the third.

With respect to the first proposed declaration, the documentary evidence clearly establishes that French is the record shareholder of the "Samuel French/JEVN Fund" that bears Scudder account number 864 85597. See Notice of Cross Motion, Van Nostrand Affidavit, Exhibit E. It also clearly establishes that both Van Nostrand and Cosgrove were to be co-administrators of the Scudder account. Id.; Exhibit D. Finally, French has presented copies of the correspondence from Van Nostrand, wherein he acknowledges that French is the owner of the Scudder account, and that he is either a "co-administrator" or a "trustee" thereof. See Notice of Motion, Exhibits B, C. Van Nostrand does not dispute that French is the owner of the Scudder account, and acknowledges that MAVN's and JEVN's interests therein expired, after 10 years, in [*4]1996. See Notice of Cross Motion, Van Nostrand Affidavit, ¶¶ 6, 10-16. Rather, Van Nostrand argues that French is contractually obligated to use the Scudder account to pay his own retirement compensation now. See Notice of Cross Motion, ¶¶ 10,17-28. Without ruling on the legitimacy of these claims at this juncture, since they bear on Van Nostrand's breach of contract counterclaims claims, it is clear from the documentary evidence that French owns the Scudder account. Therefore, French is entitled to a declaration that it is the owner of the Scudder account.

French's second proposed declaration is that Scudder must turn over the funds in the Scudder account to French. See Notice of Motion, Solovay Affirmation, , (second amended complaint ¶ 44). As previously mentioned, Van Nostrand's only opposition argument is that French is obligated to use the Scudder account to make retirement payments to him. See Notice of Cross Motion, Van Nostrand Affidavit, ¶¶17-28. However, none of the documentary evidence presented, including the Van Nostrand employment contract and several board resolutions, appears to contain a provision stating that French must specifically use the Scudder account as the vehicle with which to make retirement payments to Van Nostrand. Id.; Exhibits A-E. It seems, instead, that French is free to choose the method by which to make Van Nostrand's retirement payments, if any are in fact due. Thus, the court rejects Van Nostrand's opposition argument, and determines that French is entitled to a declaration that Scudder must turn over the funds in the Scudder account to French, for the reasons discussed above.

Finally, with respect to its third proposed declaration, French merely asserts that Van Nostrand has improperly removed $50,000.00 from the Scudder account for his own purposes. See Notice of Motion (second amended complaint ¶ 44). However, French does not annex any documentary evidence to support this claim. The Appellate Division, First Department, has long held that conclusory assertions which are unsupported by evidence are insufficient to sustain a motion for summary judgment. See e.g. Mason v Dupont Direct Financial Holdings, 302 AD2d 260 (1st Dept 2003). Further, Van Nostrand has presented evidence in support of his claims that he was both a lawful signatory to the Scudder account, as well as that French is contractually obligated to make retirement payments to him. See Notice of Cross Motion, Van Nostrand Affidavit, Exhibits A, D, E. Without ruling on the viability of Van Nostrand's breach of contract claims, the evidence before the court presents an issue of fact as to whether purported withdrawals from the Scudder account were improper. Thus, French is not entitled to summary judgment on its cause of action for a declaration that Van Nostrand must return the funds that he purportedly withdrew from the Scudder account. Instead, resolution of Van Nostrand's breach of contract claims shall be determined at the trial of this action, as discussed below, and, therefore, the portion of French's motion which seeks a declaration with respect to the return of the funds to the Scudder account is denied. Accordingly, plaintiff's motion is granted solely to the extent of granting the first and second declarations that it seeks, but denied as to the third.

Van Nostrand's Cross Motion

As previously mentioned, Van Nostrand's cross motion seeks a declaratory judgment on his three counterclaims. However, as was also previously discussed, those counterclaims seek damages for breach of contract/anticipatory breach, not declaratory relief. Indeed, Van Nostrand does not even offer any legal argument directed at breach of contract/anticipatory breach. CPLR 3212 (b) certainly empowers a court presented with a motion for summary judgment to search the record and grant summary judgment to any party (including a non-moving party) that is entitled [*5]to such relief. See e.g. Levin v 117 Ltd. Partnership, 291 AD2d 304 (1st Dept 2002), citing Merritt Hill Vineyards Inc. v Windy Heights Vineyard, Inc., 61 NY2d 106 (1984). However, as the Court of Appeals held in Dunham v Hilco Constr Co. (89 NY2d 425, 429-430 [1996]), " [a] motion for summary judgment must be addressed to one or more specific causes of action or defenses'" and, therefore, "a court may search the record and grant summary judgment ... only with respect to a cause of action or issue that is the subject of the motions before the court [internal citations omitted, emphasis added]." Here, it is clear that Van Nostrand has not properly placed any claims for declaratory relief before the court, but, rather, has only asserted three claims for breach of contract/anticipatory breach. Under these circumstances, defendant is clearly not entitled to summary judgment. Further, insufficient proof has been submitted to establish defendant Van Nostrand's counterclaims for breach of contract as a matter of law. Accordingly, defendant Van Nostrand's cross motion is denied.

ACCORDINGLY, for the foregoing reasons it is

ORDERED that the motion, pursuant to CPLR 3212, of plaintiff Samuel French, Inc. is granted solely to the extent of declaring: 1) that plaintiff is the sole owner of the brokerage account that is described in the within second amended complaint and that is maintained by co-defendant DWS Scudder; and 2) that said co-defendant must release the funds in the subject account to plaintiff upon receipt of a copy of this order with notice of entry, but is otherwise denied; and it is further

ORDERED that the cross motion, pursuant to CPLR 3212, of defendant Charles R. Van Nostrand is, in all respects, denied ; and it is further

ORDERED that the balance of this action shall continue; and it is further

ORDERED that within 30 days of entry of this order, plaintiff shall serve a copy upon all parties, with notice of entry.

Dated: New York, New York

January, 2010

_________________________

Hon. Doris Ling-Cohan, J.S.C. C:\htformat\f5029600.txt