| East End Labs., Inc. v Sawaya |
| 2010 NY Slip Op 09885 [79 AD3d 1095] |
| December 28, 2010 |
| Appellate Division, Second Department |
| East End Laboratories, Inc.,Respondent-Appellant, v Teresa Sawaya et al.,Appellants-Respondents. |
—[*1] Gold, Stewart, Kravatz, Benes, LLP, Westbury, N.Y. (Melissa B. Levine of counsel), forrespondent-appellant.
In an action, inter alia, to recover damages for breach of fiduciary duty and conversion, thedefendants appeal from so much of an order of the Supreme Court, Suffolk County (Emerson, J.),dated June 25, 2009, as denied that branch of their motion pursuant to CPLR 3211 (a) (7) whichwas to dismiss the fifth cause of action for failure to state a cause of action, and the plaintiffcross-appeals from so much of the same order as granted those branches of the defendants'motion pursuant to CPLR 3211 (a) (7) which were to dismiss the first, second, third, and fourthcauses of action for failure to state a cause of action.
Ordered that the order is reversed insofar as appealed from, on the law, and that branch of thedefendants' motion pursuant to CPLR 3211 (a) (7) which was to dismiss the fifth cause of actionfor failure to state a cause of action is granted; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The plaintiff alleged that it entered into an agreement with nonparty Altaire Pharmaceuticals,Inc. (hereinafter Altaire). Pursuant to the agreement, the plaintiff would acquire customers forAltaire, and when those customers placed orders with Altaire, the plaintiff would earn acommission which would be added to the customers' purchase price. The plaintiff alleged, amongother things, that the defendants, the sole owners and officers of Altaire, failed to pay it thecommissions due and instead retained those funds.
The Supreme Court erred in denying that branch of the defendants' motion pursuant to CPLR3211 (a) (7) which was to dismiss the fifth cause of action, sounding in conversion, for failure tostate a cause of action. " '[A] claim of conversion cannot be predicated on a mere breach ofcontract' " (Hamlet at Willow Cr. Dev.Co., LLC v Northeast Land Dev. Corp., 64 AD3d 85, 112 [2009], quoting MBL LifeAssur. Corp. v 555 Realty Co., 240 AD2d 375, 376 [1997]). Although " 'a contracting [*2]party may be charged with a separate tort liability arising from abreach of a duty distinct from, or in addition to, the breach of contract' " (Hamlet at WillowCr. Dev. Co., LLC v Northeast Land Dev. Corp., 64 AD3d at 113, quoting North ShoreBottling Co. v Schmidt & Sons, 22 NY2d 171, 179 [1968]), here, the complaint failed to setforth allegations which would constitute a wrong separate and distinct from an alleged breach ofcontract which could give rise to independent tort liability (see Hochman v LaRea, 14 AD3d 653, 655 [2005]; MBL LifeAssur. Corp. v 555 Realty Co., 240 AD2d at 376). Accordingly, that branch of thedefendants' motion which was to dismiss the cause of action sounding in conversion should havebeen granted.
The Supreme Court properly granted those branches of the defendants' motion which were todismiss the first and second causes of action to recover damages for breach of fiduciary duty, thethird cause of action for the imposition of a constructive trust, and the fourth cause of action foran accounting, for failure to state a cause of action. While the allegations in the complaint may besufficient to allege that a fiduciary relationship existed between the plaintiff and Altaire, theywere insufficient to allege the existence of a relationship between the plaintiff and the defendants(see Brasseur v Speranza, 21 AD3d297, 298 [2005]; cf. AHA Sales,Inc. v Creative Bath Prods., Inc., 58 AD3d 6, 23 [2008]). Furthermore, in the absence ofa fiduciary relationship, the complaint fails to state a cause of action for the imposition of aconstructive trust (see First KeystoneConsultants, Inc. v DDR Constr. Servs., 74 AD3d 1135, 1138 [2010]; Rocchio v Biondi, 40 AD3d 615,616 [2007]), or for an accounting (seeAkkaya v Prime Time Transp., Inc., 45 AD3d 616, 617 [2007]; Town of New Windsor v New WindsorVolunteer Ambulance Corps, Inc., 16 AD3d 403, 404 [2005]). Skelos, J.P., Dickerson,Belen and Lott, JJ., concur.