Ordered that the judgment is modified, on the law, by reducing the damages awarded to Matthew J. Verdone for unpaid shareholder distributions from Suffolk Anesthesiology Associates, P.C., for the year 2008 from the principal sum of $98,400 to the principal sum of $30,521; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
Suffolk Anesthesiology Associates, P.C. (hereinafter SAA), two related entities, and their shareholders commenced action No. 1 against Matthew J. Verdone, formerly a shareholder and employee of SAA and the related entities, inter alia, to recover damages for breach of fiduciary duty, breach of contract, and tortious interference with contract. Verdone commenced action No. 2 against SAA, the related entities, and their shareholders, inter alia, to recover damages for breach of contract, breach of fiduciary duty, and unjust enrichment. The relationship between SAA and Verdone was governed by an employment agreement and a shareholders' agreement. The shareholders' agreement provided that if an employee-shareholder engaged in willful misconduct that had a "material adverse effect" upon SAA, that employee was subject to termination "with cause," upon a vote of two-thirds of the other shareholders. The shareholders' agreement further provided that an employee who is terminated "with cause" would be required to surrender his or her shares for par value.
On December 15, 2008, Verdone's employment was terminated by a vote of the shareholders, both "with cause" and "without cause." The termination "with cause" was based on his actions in connection with the acquisition by the SAA shareholders of SurgiCare Ambulatory Center, Inc. (hereinafter Surgicare). The record shows, inter alia, that Verdone intentionally engaged in misconduct that was materially adverse to the interests of SAA and its shareholders in connection with that transaction. Accordingly, the Supreme Court did not err in determining that the termination "with cause" was proper (see
Verdone failed to establish that he is entitled to damages or other relief in connection with a preliminary injunction issued by the Supreme Court during the pendency of action No. 1 (see Fallsburg Fishing & Boating Club, Inc. v Spiegel, 9 A.D.3d 765, 766 [2004]). However, the Supreme Court did not err in ordering the payment of prejudgment interest on an award to Verdone for his share of his investment in Surgicare (see CPLR 5001 [a], [b]). Contrary to the contention of the plaintiffs in action No. 1, the record does not show that those parties made an unconditional tender equivalent to the damages due Verdone prior to the date of judgment (cf. North Riverside Partners v Haller, 12 A.D.3d 248 [2004]; Affiliated Credit Adjustors v Carlucci & Legum, 139 A.D.2d 611, 613 [1988]).
We modify the judgment to correct a computational error with respect to the damages awarded to Verdone for unpaid shareholder distributions from SAA for the year 2008.
The parties' remaining contentions are without merit.
