On May 18, 2023, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Yampolsky v. Tsaryuk, 2023 NY Slip Op. 31692(U), holding that in the Second Department, an equitable accounting was not available without a finding of the defendant’s misconduct, explaining:
It is well settled that an accounting is an equitable remedy that a patty may seek where the party can establish the existence of a confidential or fiduciary relationship and a breach of the duty imposed by that relationship respecting property in which the party seeking the accounting has an interest. Thus, to obtain an accounting the plaintiff must demonstrate some wrongdoing on the part of a defendant with respect to the fiduciary relationship. Indeed, while the First Department seems to dispense with the showing of wrongdoing to obtain an accounting the Second Department requires that showing. Moreover, in Owen v Blumenthal the Court of Appeals explained that insofar as an accounting is based upon wrongdoing thus alleged, it may not be had unless such wrongdoing is first established. Therefore, in Soley v. Wasserman, 2013 WL 52673.2 [S. D. N. Y. 2013] the court denied a motion for summary judgement on an equitable accounting claim where any underlying wrongdoing had not yet been established.
In this case there has been no determination whether the defendant breached any fiduciary duty or committed any wrongdoing sufficient to conclude the plaintiff is thus entitled to an accounting.
(Internal quotations and citations omitted).