| Beesmer v Besicorp Dev., Inc. |
| 2010 NY Slip Op 03521 [72 AD3d 1460] |
| April 29, 2010 |
| Appellate Division, Third Department |
| William Beesmer et al., Appellants, v Besicorp Development, Inc.,et al., Respondents. |
—[*1] Robinson, Brog, Leinwand, Greene, Genovese & Gluck, P.C., New York City (David C.Burger of counsel), for Besicorp Development, Inc. and others, respondents. Vandenberg & Feliu, L.L.P., New York City (Jeffrey E. Gross of counsel), for SunwizeTechnologies, Inc., respondent.
Stein, J. Appeal from an order of the Supreme Court (Cahill, J.), entered December 11, 2008in Ulster County, which, among other things, partially granted certain defendants' motions todismiss the complaint.
Plaintiffs commenced this action in 2008, seeking damages for employment discrimination,fraud, conversion, breach of contract and unjust enrichment. Plaintiffs are former employees ofcertain of the defendant business entities, which they allege are essentially a single entity,located at the same physical office and sharing the same directors and officers. Plaintiffs allegethat they were fraudulently induced into accepting employment, denied certain compensationand stocks and improperly terminated or transferred in April 2002. All defendants exceptdefendants Sunwize Technologies, Inc. and Besicorp Group, Inc.[FN1]have moved to dismiss the complaint pursuant to CPLR 3211 (a) (1), (5) and (7), asserting thatthe complaint fails to [*2]state a cause of action, that certainclaims are barred by the statute of limitations and that a defense is founded on documentaryevidence. Sunwize has separately moved to dismiss the complaint pursuant to CPLR 3211 (a)(1), (7) and (8) on the grounds that the complaint fails to state a cause of action, that it is not anecessary party and that plaintiffs have failed to obtain jurisdiction over it.
After denying plaintiffs' request to withhold decision on defendants' motions pending anopportunity to conduct discovery, Supreme Court, as relevant here, dismissed the tenth throughtwelfth causes of action (fraud) as untimely, and the seventh through ninth and thirteenth throughfifteenth causes of action (seeking injunctive relief) for failure to state a claim. The court alsodismissed, as time-barred, the sixteenth through eighteenth causes of action (conversion) to theextent that they arose out of the sale and liquidation of defendant Besicorp, Ltd. in 1999 and2000, and all claims against defendants Randi Zinn, Frederic Zinn and the Estate of Michael F.Zinn. Finally, the complaint was dismissed in its entirety as against Sunwize. Plaintiffs nowappeal.[FN2]
Initially, we discern no abuse of discretion in Supreme Court's denial of plaintiffs' request tostay a determination of defendants' motions pending discovery. In order to warrant suchdiscretionary relief, the party seeking the stay must demonstrate "some evidentiary basis for itsclaim that further discovery would yield material evidence and also 'demonstrate how furtherdiscovery might reveal material facts in the movant's exclusive knowledge' " (Rochester Linoleum & Carpet Ctr., Inc. vCassin, 61 AD3d 1201, 1202 [2009], quoting Scofield v Trustees of Union Coll. inTown of Schenectady, 267 AD2d 651, 652 [1999]). Even a request that displays someevidentiary basis supporting further discovery will be insufficient where the complaint fails tostate a cause of action as a matter of law (see Herzog v Town of Thompson, 216 AD2d801, 803-804 [1995]). Here, plaintiffs' attorney made only a general request for furtherdiscovery, unsupported by any evidentiary basis. Nor does the affidavit of plaintiff JoyceDePietro supply any information with regard to discovery. Furthermore, as set forth herein,Supreme Court correctly determined that certain causes of action failed to state a claim.Accordingly, Supreme Court properly denied plaintiffs' request to stay determination of themotions to dismiss in order to permit further discovery.
Turning to the merits of the motions to dismiss, we must liberally construe the complaint(see CPLR 3026), "accept the facts as alleged in the complaint as true, accord plaintiffsthe benefit of every possible favorable inference, and determine only whether the facts as allegedfit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Indoing so, we conclude that Supreme Court erred in dismissing the seventh, eighth, ninth,thirteenth, fourteenth and fifteenth causes of action as to plaintiff William Beesmer and DePietroand in dismissing certain causes of action against defendant Frederic Zinn; we otherwise agreewith Supreme Court's determination.
The seventh, eighth, ninth, thirteenth, fourteenth and fifteenth causes of action seekinjunctive relief with regard to stock ownership and a declaratory judgment determining that[*3]plaintiffs have an ownership interest in all subsidiaries andsuccessors of Besicorp, Ltd. Contrary to Supreme Court's determination, our reading of thecomplaint reveals that, for the purposes of defendants' motions, it sufficiently alleges that all ofdefendant business entities were successors in interest to Besicorp, Ltd. and, thus, states a causeof action as against them. However, inasmuch as there was no allegation in the complaint thatplaintiff Joseph Parenteau ever received any stock in Besicorp, Ltd., Supreme Court properlydetermined that these causes of action failed to state a claim as to him. In addition, while thedismissal of all causes of action against Sunwize was premised on the mistaken impression thatthe complaint did not adequately allege that Sunwize was a successor in interest to Besicorp,Ltd., dismissal was nonetheless proper. Plaintiffs concede—indeed, the complaintexpressly states—that they are not making a claim for damages against Sunwize.Accordingly, Sunwize is not a proper party to this action (see CPLR 1001, 1002).
The tenth through twelfth causes of action are based primarily upon allegations that plaintiffswere fraudulently induced by one or more defendants to accept employment. The statute oflimitations applicable to such claims is six years (see CPLR 213). Since each plaintiffaccepted defendants' offers of employment at least seven years before the commencement of thisaction, Supreme Court correctly determined that such claims are time-barred. To the extent thatthese claims allege that defendants fraudulently induced plaintiffs to agree to accept restrictedstock and deferred compensation and repeatedly forestalled delivery by fraud, we fail to see howthe complaint, even generously construed, may be read to include any conduct occurring withinthe statute of limitations. Thus, these three causes of action were properly dismissed.
Inasmuch as the statute of limitations for a conversion action is three years (seeCPLR 214 [3]; Tatko v Sheldon SlateProds. Co., 2 AD3d 1030, 1031 [2003]), the sixteenth, seventeenth and eighteenthcauses of action relating to the sale of Besicorp, Ltd. in 1999 and 2000 were also properlydismissed as time-barred. However, to the extent that plaintiffs' conversion claims relate toevents other than such sale of Besicorp, Ltd. and were not dismissed by Supreme Court, theyalso should not have been dismissed as against Frederic Zinn, individually except as they maypertain to him as a beneficiary of defendant Estate of Michael F. Zinn. Upon a liberal reading ofthe complaint, it is apparent that it alleges claims against Frederic Zinn individually and/or inconnection with his position(s) in the various defendant business entities and not just as abeneficiary of the estate.
Plaintiffs' remaining contentions have been considered and are unavailing.
Mercure, J.P., Peters, Rose and McCarthy, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as (1) dismissed the seventh, eighth, ninth,thirteenth, fourteenth and fifteenth causes of action with respect to plaintiffs William Beesmerand Joyce DePietro and (2) dismissed that part of the sixteenth, seventeenth and eighteenthcauses of action as stated claims against defendant Frederic Zinn individually; motions denied tosaid extent; and, as so modified, affirmed.
Footnote 1: There is nothing in the record toindicate that Besicorp Group, Inc. has ever appeared in the action.
Footnote 2: Supreme Court also dismissedthe first through sixth causes of action as well as the nineteenth through twenty-fourth causes ofaction, but plaintiffs have abandoned these claims on appeal.