| Quinones v Schaap |
| 2012 NY Slip Op 00349 [91 AD3d 739] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Leonardo Quinones et al., Respondents, v William H.Schaap, Appellant, et al., Defendants. |
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In an action, inter alia, to recover damages for breach of contract and fraud, the defendantWilliam H. Schaap appeals, as limited by his brief, from so much of an order of the SupremeCourt, Nassau County (Brandveen, J.), entered December 21, 2010, as denied his motionpursuant to CPLR 3211 (a) (7) and 3016 (b) to dismiss the amended complaint insofar as assertedagainst him.
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the motion of the defendant William H. Schaap which were pursuant to CPLR3211 (a) (7) and 3016 (b) to dismiss the causes of action to recover damages for fraud andconversion insofar as asserted against him, and substituting therefor a provision granting thosebranches of the motion; as so modified, the order is affirmed insofar as appealed from, withoutcosts or disbursements.
The amended complaint alleges that the plaintiffs entered into an oral agreement with thedefendants for a loan in the sum of $140,000, that such money was wire-transferred into theIOLA account of the defendant attorney William H. Schaap, and that, despite due demand, thedefendants failed to repay the loan or provide an accounting of the escrowed funds. In the orderappealed from, the Supreme Court, inter alia, denied Shaap's motion pursuant to CPLR 3211 (a)(7) and 3016 (b) to dismiss the amended complaint insofar as asserted against him. Schaapappeals. We modify.
In determining whether a complaint is sufficient to withstand a motion to dismiss pursuant toCPLR 3211 (a) (7), "the sole criterion is whether the pleading states a cause of action, and iffrom its four corners factual allegations are discerned which taken together manifest any cause ofaction cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzburg, 43NY2d 268, 275 [1977]; see 1414 Realty Corp. v G & G Realty Co., 272 AD2d 309[2000]). "The complaint must be construed liberally, the factual allegations deemed to be true,and the nonmoving party granted the benefit of every possible favorable inference" (Hense v Baxter, 79 AD3d 814,815 [2010]; see Leon v Martinez, 84 NY2d 83, 87 [1994]; Kopelowitz & Co., Inc. v Mann, 83AD3d 793, 796-797 [2011]). In addition, a court may consider any factual submissions madein opposition to a motion to dismiss in order to remedy pleading defects (see CPLR 3211[c]; Ryan v Cover, 75 AD3d502, 503 [2010]; Tarzia v Brookhaven Natl. Lab., 247 AD2d 605 [1998]).
The Supreme Court properly denied that branch of Schaap's motion which was [*2]pursuant to CPLR 3211 (a) (7) to dismiss the cause of action torecover damages for breach of contract insofar as asserted against him. The amended complainteffectively alleges that, as part of the subject business transaction, the defendants received theplaintiffs' loan in the sum of $140,000, and that the defendants were to repay that loan withinterest.
Furthermore, because the amended complaint alleges that Schaap agreed to separatelymaintain the loaned sum in his IOLA account, to provide an accounting on demand, and to repaythe loaned sum on demand, and that Schaap failed to do so, the plaintiffs sufficiently alleged acause of action against him to recover damages for breach of fiduciary duty and for anaccounting.
However, the Supreme Court erred in denying those branches of Schaap's motion which werepursuant CPLR 3211 (a) (7) and 3016 (b) to dismiss the causes of action to recover damages forfraud and conversion insofar as asserted against him. Here, "the plaintiff[s] fail[ ] to allege orprovide details of any misstatements or misrepresentations made to [them] specifically by[Schaap], as required by CPLR 3016 (b)" (Scott v Fields, 85 AD3d 756, 757-758 [2011]). Likewise, the causeof action alleging conversion must also be dismissed, "since the cause of action, as pleaded, is'predicated on a mere breach of contract' " (Weinstein v Natalie Weinstein Design Assoc., Inc., 86 AD3d 641,642 [2011], quoting Wolf v National Council of Young Israel, 264 AD2d 416, 417[1999]; see Tornheim v Blue & WhiteFood Prods. Corp., 56 AD3d 761 [2008]) and, in any event, the allegations in theamended complaint in general are insufficient to state a conversion claim (see IndependenceDiscount Corp. v Bressner, 47 AD2d 756, 757 [1975]).
Accordingly, the Supreme Court should have granted those branches of Schaap's motionwhich were pursuant to CPLR 3211 (a) (7) and 3016 (b) to dismiss the causes of action torecover damages for fraud and conversion insofar as asserted against him. Dillon, J.P., Balkin,Leventhal and Chambers, JJ., concur.