| Davis v CornerStone Tel. Co., LLC |
| 2009 NY Slip Op 03434 [61 AD3d 1315] |
| April 30, 2009 |
| Appellate Division, Third Department |
| Lawrence A. Davis, Also Known as Larry Davis, Individually andas Shareholder of Combined Solutions, Inc., and as a Member of CornerStone TelephoneCompany, LLC, Appellant, v CornerStone Telephone Company, LLC, et al.,Respondents. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., Albany (Peter A. Lauricella ofcounsel), for respondents.
Rose, J.P. Appeal from an amended order of the Supreme Court (Platkin, J.), entered June13, 2008 in Albany County, which, among other things, granted defendants' motion to dismissthe amended complaint.
During the first half of 2001, plaintiff allegedly gave a total of $100,000 to defendantsDaniel J. Yamin Jr. and Donald J. Walsh in exchange for their promise that he would be a partowner of Combined Solutions, Inc., the telecommunications consulting corporation that theywere forming. Plaintiff never received any shares of stock in Combined Solutions or a secondcompany, CSTC, LLC, which Combined Solutions formed in June 2001 and which Yamin andWalsh later used to compete with plaintiff's own telecommunications business. Despite this and anewspaper article in January 2002 reporting that plaintiff had stated that he "didn't loan themmoney to compete against me," he did not commence this action to recoup his investment untilAugust 2007. In a lengthy amended complaint comprising 155 pages, 389 paragraphs and 21exhibits, plaintiff seeks to recover damages under many legal theories. Defendants moved [*2]pursuant to CPLR 3211 (a) (5) and (7) to dismiss the complaint onthe grounds that its claims are barred by the applicable statutes of limitations (see CPLR213 [1], [2], [3]; 214 [4]) and fail to state a cause of action. Plaintiff cross-moved for leave toagain amend his complaint. Supreme Court granted defendants' motion and denied plaintiff'scross motion, prompting this appeal.
When a court considers a motion under CPLR 3211, it "must afford the pleadings a liberalconstruction, take the allegations of the complaint as true and provide plaintiff the benefit ofevery possible inference" (EBC I, Inc. vGoldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Westbank Contr., Inc. v Rondout Val. Cent. School Dist., 46 AD3d1187, 1188 [2007]). However, even after applying these principles to plaintiff's prolixcomplaint, we find that only his arguments regarding his second and fourth causes of actionwarrant discussion.
In his second cause of action, plaintiff alleges that he, Yamin and Walsh entered into anunwritten contract by which they agreed to grant him a "proportionate" share of CombinedSolutions in exchange for his contribution of $100,000. Affording plaintiff the benefit of everypossible inference, we agree that the complaint, when considered together with an undated letterfrom Yamin asking that plaintiff accept a 6% ownership of the company's stock, can be read toallege a claim that Yamin and Walsh agreed to grant plaintiff 6% ownership for each of his twopayments of $50,000 (see Ground to Air Catering v Dobbs Intl. Servs., 285 AD2d 931,933 [2001]; G.H. Dorety Constr. v Joseph Francese, Inc., 252 AD2d 656, 656-657[1998]). Nonetheless, this breach of contract claim, the related third cause of action for breach ofthe covenant of good faith and the seventh cause of action for quasi contract are all untimelybecause plaintiff did not assert them until more than six years after the money was paid anddefendants breached their obligations by failing to grant him part ownership or otherwisecompensate him (see e.g. County ofNiagara v Town of Royalton, 48 AD3d 1072, 1072 [2008]; Liberman vWorden, 268 AD2d 337, 339 [2000]; Klein v Conte, 212 AD2d 363, 363 [1995]).
We reach a different conclusion with regard to plaintiff's fourth cause of action for unjustenrichment. This claim alleges that plaintiff gave defendants $100,000 and valuable personalservices, and that it would be inequitable for them to retain those benefits without compensatinghim (see Clifford R. Gray, Inc. vLeChase Constr. Servs., LLC, 31 AD3d 983, 988 [2006]). While the six-year statute oflimitations also applies to this claim (see Elliott v Qwest Communications Corp., 25 AD3d 897, 898[2006]), it is time-barred only to the extent that plaintiff provided things of value more than sixyears before he commenced this action. Since plaintiff alleges in an opposing affidavit that heprovided nonmonetary benefits to defendants after August 2001, his claim for the value of thosecontributions is not time-barred.
For the reasons set forth by Supreme Court in its comprehensive written decision (19 Misc3d 1142[A], 2008 NY Slip Op 51141[U] [2008]), we concur that plaintiff's further causes ofaction numbered 1, 5, 12, 18, 19, 21 and 22 were properly dismissed as time-barred. The courtalso properly dismissed causes of action numbered 6, 8-11, 13-17, 20 and 23-27 for their failureto state a cause of action. Finally, inasmuch as plaintiff's proposed second amended complaintcomprising 196 pages, 488 paragraphs and 25 exhibits would not remedy the defects of the firstor comply with CPLR 3014, Supreme Court did not abuse its discretion in denying plaintiff'scross motion to amend his complaint (see Sanford v Colgate Univ., 36 AD3d 1060, 1062 [2007];Moon v Clear Channel Communications, 307 AD2d 628, 630 [2003]; cf. Lawrence vTalbot, 62 AD2d 1012, 1012 [1978]).
Kane, Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the amended order ismodified, on the law, without costs, by reversing so much thereof as granted defendants' motionto dismiss the fourth cause of action; motion denied to that extent; and, as so modified, affirmed.[See 19 Misc 3d 1142(A), 2008 NY Slip Op 51141(U).]