| Goldberger v Rudnicki |
| 2012 NY Slip Op 03137 [94 AD3d 1047] |
| April 24, 2012 |
| Appellate Division, Second Department |
| Marcel Goldberger, Respondent, v Janusz E. Rudnicki etal., Defendants, and Mount Kisco Medical Group, P.C., Appellant. |
—[*1] Cuddy & Feder LLP, White Plains, N.Y. (Joshua J. Grauer and Anthony P. Luisi of counsel),for respondent.
In an action, inter alia, to recover damages for conversion, the defendant Mount KiscoMedical Group, P.C., appeals from stated portions of an order of the Supreme Court, PutnamCounty (Nicolai, J.), dated November 16, 2010, which, inter alia, denied those branches of thedefendants' motion which were pursuant to CPLR 3211 (a) (3) and (7) to dismiss the complaintinsofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the defendants' motion which were pursuant to CPLR 3211 (a) (7) to dismissthe causes of action seeking to impose a constructive trust and for an accounting and the claimfor punitive damages insofar as asserted against the defendant Mount Kisco Medical Group, P.C.,and substituting therefor provisions granting those branches of the motion; as so modified, theorder is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff, Marcel Goldberger, formerly shared a medical practice with the defendantJanusz E. Rudnicki. The plaintiff alleges that Rudnicki failed to follow through on his agreementto purchase the plaintiff's 50% interest in their medical practice and instead transferred, inter alia,the practice's money, accounts receivable, and equipment to the defendant Putnam Obstetrics &Gynecology, P.C., which in turn transferred these items to the defendant Mount Kisco MedicalGroup, P.C. (hereinafter Mount Kisco Medical), where Rudnicki is now employed. Thedefendants' motion, inter alia, pursuant to CPLR 3211 (a) (3) and (7) to dismiss the plaintiff'scomplaint was denied in its entirety, and Mount Kisco Medical now appeals from so much of theorder as denied those branches of the motion which related to it. We modify.
Mount Kisco Medical's argument with regard to standing is without merit, as the injuryalleged is personal to the plaintiff himself (see Glenn v Hoteltron Sys., 74 NY2d 386,392 [1989]). Accordingly, the Supreme Court properly denied that branch of the defendants'motion which was pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as assertedagainst Mount Kisco Medical.
The Supreme Court did not err in denying that branch of the defendants' motion which waspursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging conversion insofar [*2]as asserted against Mount Kisco Medical. The complaintsufficiently alleged that Mount Kisco Medical intentionally, and without authority, assumed orexercised control over, inter alia, equipment, money, and accounts receivable belonging in part tothe plaintiff (see Colavito v New YorkOrgan Donor Network, Inc., 8 NY3d 43, 49-50 [2006]; State of New York v SeventhRegiment Fund, 98 NY2d 249, 259-260 [2002]; see also Batsidis v Batsidis, 9 AD3d 342, 343 [2004]).
However, the Supreme Court should have granted that branch of the defendants' motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action seeking to impose aconstructive trust insofar as asserted against Mount Kisco Medical. The complaint does notallege that Mount Kisco Medical and the plaintiff had a confidential or fiduciary relationship, nordoes it allege that the plaintiff ever transferred an interest in reliance on any promise made bythat defendant (see Sharp v Kosmalski, 40 NY2d 119, 121 [1976]).
Since the plaintiff did not allege that he shared a confidential or fiduciary relationship withMount Kisco Medical, the Supreme Court also should have granted that branch of the defendants'motion which was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action for anaccounting insofar as asserted against that defendant (see LoGerfo v Trustees of Columbia Univ. in City of N.Y., 35 AD3d395, 397 [2006]).
Moreover, the allegations in the complaint do not support the imposition of punitive damagesagainst Mount Kisco Medical (see Walker v Sheldon, 10 NY2d 401, 404-405 [1961]).Therefore, that branch of the defendants' motion which was pursuant to CPLR 3211 (a) (7) todismiss that claim insofar as asserted against Mount Kisco Medical should have been granted.
Mount Kisco Medical's remaining contentions are without merit. Rivera, J.P., Eng, Hall andSgroi, JJ., concur.