| Kalmon Dolgin Affiliates, Inc. v Tonacchio |
| 2013 NY Slip Op 06660 [110 AD3d 848] |
| October 16, 2013 |
| Appellate Division, Second Department |
| Kalmon Dolgin Affiliates, Inc.,Respondent, v Domenick Tonacchio, Defendant, and Itzhak Katan, Also Knownas Isaac Katan, et al., Appellants. |
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In an action, inter alia, to recover damages for breach of contract, the defendantsItzhak Katan, also known as Isaac Katan, 267 Sixth Street, LLC, and NoreastDevelopment Corp. appeal, as limited by their brief, from so much of an order of theSupreme Court, Kings County (Schmidt, J.), dated September 12, 2012, as denied thosebranches of their motion which were pursuant to CPLR 3211 (a) (7) to dismiss the firstcause of action insofar as asserted against the defendants Itzhak Katan, also known asIsaac Katan, and 267 Sixth Street, LLC, and the third and fourth causes of action insofaras asserted against the defendants 267 Sixth Street, LLC, and Noreast DevelopmentCorp.
Ordered that the order is modified, on the law, (1) by deleting the provision thereofdenying that branch of the motion of the defendants Itzhak Katan, also known as IsaacKatan, 267 Sixth Street, LLC, and Noreast Development Corp. which was pursuant toCPLR 3211 (a) (7) to dismiss the first cause of action insofar as asserted against thedefendants Itzhak Katan, also known as Isaac Katan, and 267 Sixth Street, LLC, andsubstituting therefor a provision granting that branch of the motion, and (2) by deletingthe provision thereof denying that branch of the motion of the defendants Itzhak Katan,also known as Isaac Katan, 267 Sixth Street, LLC, and Noreast Development Corp.which was pursuant to CPLR 3211 (a) (7) to dismiss the fourth cause of action insofar asasserted against the defendants 267 Sixth Street, LLC, and Noreast Development Corp.,and substituting therefor a provision granting that branch of the motion; as so modified,the order is affirmed insofar as appealed from, with one bill of costs to the defendantsItzhak Katan, also known as Isaac Katan, 267 Sixth Street, LLC, and NoreastDevelopment Corp.
The plaintiff commenced this action in May 2012, alleging, inter alia, that on orabout February 19, 2009, it entered into a letter agreement with the defendants DomenickTonacchio, Itzhak Katan, also known as Isaac Katan, and Noreast Development Corp.(hereinafter Noreast), pursuant to which those defendants and the defendant 267 SixthStreet, LLC (hereinafter 267), became obligated to pay the plaintiff a real estate broker'scommission in the sum of $320,000. The plaintiff alleged that while it had been paid$160,000 of its commission, the defendants had defaulted on the payment of the balanceof $160,000. In the order appealed from, the Supreme Court, in pertinent part, deniedthat branch of the motion of Katan, 267, and Noreast (hereinafter collectively [*2]the moving defendants) which was pursuant to CPLR 3211(a) (7) to dismiss the first cause of action, which sought damages for breach of contract,insofar as asserted against Katan and 267. In addition, the court denied those branches ofthe moving defendants' motion which were pursuant to CPLR 3211 (a) (7) to dismiss thethird and fourth causes of action, which, respectively, sought to recover damages forunjust enrichment and to impose a constructive trust, insofar as asserted against 267 andNoreast.
"On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court mustliberally construe the complaint, accept all facts as alleged in the pleading to be true,accord the plaintiff the benefit of every favorable inference, and determine only whetherthe facts as alleged fit within any cognizable legal theory" (Minovici v Belkin BV, 109AD3d 520, 521 [2013]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994])."Where a party offers evidentiary proof on a motion pursuant to CPLR 3211 (a) (7), thefocus of the inquiry turns from whether the complaint states a cause of action to whetherthe plaintiff actually has one" (QK Healthcare, Inc. v InSource, Inc., 108 AD3d 56, 64[2013]; see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). "[U]nless ithas been shown that a material fact as claimed by the pleader to be one is not a fact at alland unless it can be said that no significant dispute exists regarding it, . . .dismissal should not eventuate" (Guggenheimer v Ginzburg, 43 NY2d at 275; see Rabos v R&R Bagels &Bakery, Inc., 100 AD3d 849, 851-852 [2012]).
Here, the Supreme Court should have granted that branch of the moving defendants'motion which was pursuant to CPLR 3211 (a) (7) to dismiss the first cause of actioninsofar as asserted against Katan and 267. The evidentiary material submitted by themoving defendants demonstrated that the plaintiff's allegation that it had entered into theletter agreement with Katan was "not a fact at all" (Guggenheimer v Ginzburg,43 NY2d at 275). Specifically, the moving defendants' submissions conclusivelydemonstrated that Katan was not a signatory to the letter agreement, and that 267 was notreferenced in that agreement. Since the moving defendants established that neither Katannor 267 were signatories to the letter agreement, Katan and 267 cannot be bound by it(see Randall's Is. AquaticLeisure, LLC v City of New York, 92 AD3d 463 [2012]; Kopelowitz & Co., Inc. vMann, 83 AD3d 793, 797-798 [2011]; Pacific Carlton Dev. Corp. v 752 Pac., LLC, 62 AD3d 677,678 [2009]; National Survival Game of N.Y. v NSG of LI Corp., 169 AD2d 760,761 [1991]). Although the plaintiff alleged in an affidavit submitted by its president inopposition to the moving defendants' motion that it was led to believe that Tonacchiowas a managing member of 267 and an officer, director, or shareholder of Noreast, andthat Tonacchio was authorized to bind all parties to the letter agreement, there is nothingin the letter agreement to suggest that, in signing it, Tonacchio was also binding 267 orKatan to the terms of the letter agreement (see Kopelowitz & Co., Inc. v Mann,83 AD3d at 798).
The Supreme Court also should have granted that branch of the moving defendants'motion which was pursuant to CPLR 3211 (a) (7) to dismiss the fourth cause of actioninsofar as asserted against 267 and Noreast. "[T]o obtain the remedy of a constructivetrust, a plaintiff generally is required to demonstrate four factors: (1) a fiduciary orconfidential relationship between the parties, (2) a promise, (3) a transfer of some asset inreliance upon the promise, and (4) unjust enrichment flowing from the breach of thepromise" (Mei Yun Chen v MeiWan Kao, 97 AD3d 730, 730 [2012]). Here, the plaintiff failed to adequatelyplead a cause of action against 267 or Noreast for the imposition of a constructive trust,as the plaintiff failed to allege the existence of a confidential or fiduciary relationshipwith either of those entities, or that the plaintiff was in possession of property which ittransferred in reliance on a promise of 267 or Noreast (see Pfeiffer v Jacobowitz, 29AD3d 661, 662 [2006]; Old Republic Natl. Tit. Ins. Co. v Cardinal Abstract Corp., 14AD3d 678, 679-680 [2005]).
However, the Supreme Court properly denied that branch of the moving defendants'motion which was pursuant to CPLR 3211 (a) (7) to dismiss the third cause of actioninsofar as asserted against 267 and Noreast. Accepting the facts as alleged in thecomplaint as true, and according the plaintiff the benefit of every possible favorableinference, a cause of action against 267 and Noreast to recover damages for unjustenrichment was adequately pleaded (see generally Kopelowitz & Co., Inc. vMann, 83 AD3d at 798). Mastro, J.P., Dickerson, Chambers and Roman, JJ., concur.