| Show Lain Cheng v Young |
| 2009 NY Slip Op 02557 [60 AD3d 989] |
| March 31, 2009 |
| Appellate Division, Second Department |
| Show Lain Cheng, Also Known as Show Lain Chuu,Appellant, v Alan H. Young et al., Respondents. |
—[*1] Lindenbaum & Young, Brooklyn, N.Y. (Patrick I. Lucas of counsel), forrespondents.
In an action for contribution, the plaintiff appeals, as limited by her notice of appeal andbrief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), datedFebruary 20, 2008, as denied those branches of her motion which were pursuant to CPLR 3025(b) for leave to amend the complaint to add causes of action sounding in breach of fiduciaryduty, aiding and abetting a breach of fiduciary duty, and fraud, and pursuant to CPLR 3124 tocompel the defendants to comply with her discovery demands.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, her ex-husband Ko-Cheng Cheng, and the defendants, Alan H. Young andNicholas Guzzone, were each 25% shareholders in a corporation that owned a parcel of landencumbered by a mortgage. In 1986, Ko-Cheng Cheng, Young, and Guzzone executed aguaranty agreement in favor of the mortgagee in which they each guaranteed payment of theamounts due under the note and mortgage in the event of a default by the corporation. After thecorporation defaulted on the mortgage, the mortgagee obtained a deficiency judgment in theamount of $2,678,612.72 against Ko-Cheng Cheng, Young, and Guzzone. In 1996, Young andGuzzone obtained a release from the mortgagee for themselves from all liability for the judgmentin exchange for $75,000. In 1998, an assignee of the judgment commenced an action against theplaintiff, seeking to set aside an alleged fraudulent conveyance of four properties that Ko-ChengCheng allegedly made to the plaintiff without fair consideration while the foreclosure action waspending in order to shield the properties from the judgment against him. In 2002, during the trialof the fraudulent conveyance action, the plaintiff entered into a settlement agreement in whichshe agreed to pay the assignee of the judgment the principal amount of $1,352,500.[*2]
The plaintiff then commenced this action against Youngand Guzzone for contribution. In a 2003 order, the Supreme Court determined that the plaintiffhad standing to seek contribution from the defendants pursuant to the doctrine of equitablesubrogation (see King v Pelkofski, 20 NY2d 326, 333-334 [1967]; Gerseta Corp. vEquitable Trust Co. of N.Y., 241 NY 418, 425-426 [1926]), and was entitled to recover fromthe defendants the amount that the plaintiff had paid the assignee of the judgment in excess ofKo-Cheng Cheng's proportionate share of the judgment (see Hard v Mingle, 206 NY179, 186 [1912]). The Supreme Court determined, however, that there were issues of fact as tothe amount of contribution owed by the defendants to the plaintiff that precluded summaryjudgment.
In 2007, the plaintiff moved, inter alia, for leave to amend her complaint to add causes ofaction sounding in breach of fiduciary duty, aiding and abetting a breach of fiduciary duty, andfraud, and to compel compliance with her discovery demands. The plaintiff alleged that becauseYoung had acted as the plaintiff's attorney on several matters between 1985 and 2000, he had aduty to inform her of his and Guzzone's settlement of the judgment with the mortgagee and toensure that she had an opportunity to enter into a similar settlement with the mortgagee on termsthat were just as favorable. The Supreme Court denied the motion. We affirm the order insofar asappealed from.
Since the plaintiff was not a party to the guaranty agreement and had no liability under thejudgment, there would be no reason for Young to inform the plaintiff of his settlement agreementwith the mortgagee. Thus, the Supreme Court correctly determined that the proposed amendmentwas "palpably insufficient as a matter of law" and "devoid of merit" (see Tornheim v Blue &White Food Prods. Corp., 56 AD3d 761 [2008]; Scofield v DeGroodt, 54 AD3d1017, 1018 [2008]; Frank v Eaton, 54 AD3d 805, 805-806 [2008]). Because theplaintiff's discovery demands are largely irrelevant to the sole remaining issue in this action, theamount of contribution owed to the plaintiff, the Supreme Court properly denied the branch ofthe plaintiff's motion which was to compel the defendants to comply with her discovery demands(see generally Butt v New York Med. Coll., 7 AD3d 744, 745-746 [2004]; cf.Sullivan v Brooklyn-Caledonian Hosp., 213 AD2d 474, 475 [1995]).
As the defendants did not file a notice of appeal from the order, their contention that theSupreme Court should have granted the branch of their cross motion which was to compel theplaintiff to accept an offer of compromise is not properly before this Court (see CPLR5515; Hecht v City of New York, 60 NY2d 57, 61 [1983]). Rivera, J.P., Covello,Leventhal and Chambers, JJ., concur.