| Canzona v Atanasio |
| 2014 NY Slip Op 04458 [118 AD3d 837] |
| June 18, 2014 |
| Appellate Division, Second Department |
[*1]
| Christopher Canzona, Appellant, v CharlesAtanasio et al., Respondents. |
Michael B. Schulman & Associates, P.C., Melville, N.Y. (David R. Weiner andMiro Lati of counsel), for appellant.
Morvillo Abramowitz Grand Iason & Anello P.C., New York, N.Y. (Robert J.Anello and Andrew C. Brunsden of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiffappeals, as limited by his brief, from so much of (1) an order of the Supreme Court,Suffolk County (Whelan, J.), dated December 20, 2011, as granted those branches of thedefendants' motion which were pursuant to CPLR 3211 (a) to dismiss the second, third,fourth, and fifth causes of action in the amended complaint, (2) a judgment of the samecourt entered January 17, 2012, as, upon the order, is in favor of the defendants andagainst him dismissing those causes of action with prejudice, and (3) an order of thesame court dated November 7, 2012, as denied that branch of his motion which waspursuant to CPLR 5019 (a) to correct the judgment by deleting from the decretalparagraph thereof the words "with prejudice."
Ordered that the appeal from the order dated December 20, 2011, is dismissed,without costs or disbursements; and it is further,
Ordered that the judgment is modified, on the law, by deleting the provisions thereofdismissing the fifth cause of action and, upon dismissing the second, third, and fourthcauses of action, did so "with prejudice"; as so modified, the judgment is affirmedinsofar as appealed from, without costs or disbursements, that branch of the defendants'motion which was pursuant to CPLR 3211 (a) to dismiss the fifth cause of action isdenied, the fifth cause of action is reinstated and, with the first cause of action, issevered, and the order is modified accordingly; and it is further,
Ordered that the appeal from the order dated November 7, 2012, is dismissed asacademic, without costs or disbursements, in light of our determination on the appealfrom the judgment.
The appeal from the order dated December 20, 2011, must be dismissed because theright of direct appeal therefrom terminated with the entry of the judgment in the action(see Matter [*2]of Aho, 39 NY2d 241, 248[1976]). The issues raised on the appeal from the order are brought up for review andhave been considered on the appeal from the judgment (see CPLR 5501 [a][1]).
The plaintiff was married to the sister of the defendant Charles Atanasio (hereinafterAtanasio) and was an employee of a company co-owned by Atanasio. In 2000, theplaintiff and Atanasio jointly purchased a 48-foot boat, each retaining a 50% interest. In2001, the plaintiff, Atanasio, and their wives purchased a residential property as tenantsin common. The plaintiff commenced this action against Atanasio and his wife, MaryAtanasio, to recover monies they allegedly owed him for his payment of expenditures inconnection with the property and boat from January 2001 to August 2008. In theamended complaint, the plaintiff asserted causes of action, inter alia, alleging breach ofcontract, conversion, and constructive fraud, and to impose a constructive trust upon theproperty. The defendants moved, inter alia, pursuant to CPLR 3211 (a) (7) to dismiss theamended complaint for failure to state a cause of action, and the Supreme Court grantedthe motion. Thereafter, the Supreme Court entered a judgment upon the order dismissingthe amended complaint with prejudice.
"On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure tostate a cause of action, the court must afford the pleading a liberal construction, accept allfacts as alleged in the pleading to be true, accord the plaintiff the benefit of everypossible inference, and determine only whether the facts as alleged fit within anycognizable legal theory" (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704[2008]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Moreover, "[a] courtmay freely consider affidavits submitted by the plaintiff to remedy any defects in thecomplaint, and upon considering such an affidavit, the facts alleged therein must also beassumed to be true" (Kopelowitz & Co., Inc. v Mann, 83 AD3d 793, 797[2011] [citations and internal quotation marks omitted]).
Applying these principles here, the Supreme Court properly dismissed the secondcause of action, which alleged conversion of funds, since the plaintiff asserted a mereright to payment and did not allege that the defendants had unauthorized possession orcontrol of specifically identifiable funds allegedly converted (see Daub v Future Tech Enter.,Inc., 65 AD3d 1004, 1006 [2009]; Selinger Enters., Inc. v Cassuto, 50 AD3d 766, 768 [2008];Fiorenti v Central Emergency Physicians, 305 AD2d 453, 455 [2003]).
The Supreme Court also properly dismissed the third cause of action, which allegedbreach of contract. The essential elements of a breach of contract cause of action are "theexistence of a contract, the plaintiff's performance pursuant to the contract, thedefendant's breach of his or her contractual obligations, and damages resulting from thebreach" (Dee v Rakower,112 AD3d 204, 208-209 [2013]; see Elisa Dreier Reporting Corp. v Global NAPs Networks,Inc., 84 AD3d 122, 127 [2011]; JP Morgan Chase v J.H. Elec. of N.Y., Inc., 69 AD3d 802,803 [2010]). "Generally, a party alleging a breach of contract must 'demonstrate theexistence of a . . . contract reflecting the terms and conditions of their. . . purported agreement' " (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173,181-182 [2011], quoting American-European Art Assoc. v Trend Galleries, 227AD2d 170, 171 [1996]). Moreover, "the plaintiff's allegations must identify theprovisions of the contract that were breached" (Barker v Time Warner Cable, Inc., 83 AD3d 750, 751[2011]; see Peters v AccurateBldg. Inspectors Div. of Ubell Enters., Inc., 29 AD3d 972, 973 [2006]). Here,the plaintiff failed to plead the material terms of the alleged oral loan agreement bywhich the defendants agreed to repay or reimburse him for his payment of expendituresfor the property and boat. The plaintiff's allegations regarding the alleged oral agreementwere too vague and indefinite to plead a breach of contract cause of action (seeMandarin Trading Ltd. v Wildenstein, 16 NY3d at 182; Island Surgical Supply Co. vAllstate Ins. Co., 32 AD3d 824, 824 [2006]; Maldonado v Olympia Mech. Piping & Heating Corp., 8AD3d 348, 350 [2004]; Nathan v J & I Enters., 212 AD2d 677[1995]).
Moreover, the Supreme Court properly dismissed the fourth cause of action, whichalleged constructive fraud, as it was not pleaded with the required specificity (seeCPLR 3016 [b]; OrchidConstr. Corp. v Gottbetter, 89 AD3d 708, 710 [2011]; Morales v AMS Mtge. Servs.,Inc., 69 AD3d 691, 692 [2010]; Eastman Kodak Co. v Roopak Enters.,202 AD2d 220, 222 [1994]), and only claimed a fraud related to an alleged breach ofcontract (see Treeline 990 Stewart Partners, LLC v RAIT Atria, LLC, [*3]107 AD3d 788, 791 [2013]; Putnam County Sav. Bank vAditya, 91 AD3d 840, 842 [2012]; Mendelovitz v Cohen, 37 AD3d 670, 671 [2007]; Schenkman v New York Coll. ofHealth Professionals, 29 AD3d 671, 672 [2006]).
However, the Supreme Court should not have dismissed the fifth cause of action,which sought the imposition of a constructive trust. The equitable remedy of aconstructive trust may be imposed " '[w]hen property has been acquired in suchcircumstances that the holder of the legal title may not in good conscience retain thebeneficial interest' " (Sharp v Kosmalski, 40 NY2d 119, 121 [1976],quoting Beatty v Guggenheim Exploration Co., 225 NY 380, 386 [1919]; seeSimonds v Simonds, 45 NY2d 233, 241 [1978]; Quadrozzi v Estate of Quadrozzi, 99 AD3d 688, 691[2012]; Rowe v Kingston,94 AD3d 852, 853 [2012]). "The elements of a cause of action to impose aconstructive trust are (1) the existence of a confidential or fiduciary relationship, (2) apromise, (3) a transfer in reliance thereon, and (4) unjust enrichment" (Dee vRakower, 112 AD3d at 212; see Sharp v Kosmalski, 40 NY2d at 121;Quadrozzi v Estate of Quadrozzi, 99 AD3d at 691; Rowe v Kingston, 94AD3d at 853). "To achieve equity and avoid unjust enrichment, the courts apply thesefactors flexibly rather than rigidly" (Mei Yun Chen v Mei Wan Kao, 97 AD3d 730, 730 [2012];see Simonds v Simonds, 45 NY2d at 241; Quadrozzi v Estate of Quadrozzi, 99 AD3d 688 [2012]; Rowe v Kingston, 94 AD3d852 [2012]).
Here, the plaintiff sufficiently alleged the existence of a confidential or fiduciaryrelationship with the defendants. The parties were related through marriage, and theplaintiff and Atanasio, along with their respective spouses, pooled their resources inorder to purchase the residential property and the boat (see Birnbaum vBirnbaum, 73 NY2d 461, 465 [1989]; Tyree v Henn, 109 AD3d 906, 908 [2013]; Henning v Henning, 103 AD3d778, 780 [2013]; Marini vLombardo, 79 AD3d 932, 933-934 [2010]; Booth v Booth, 178 AD2d712, 713 [1991]; cf. Gala v Magarinos, 245 AD2d 336 [1997]). Further, theplaintiff sufficiently pleaded the elements of a promise and a transfer in reliance on thepromise. He alleged that, before he sold the defendants his interest in the property inNovember 2005, the defendants promised to reimburse him for the expenditures he madefor the property and boat as long as he continued making those payments for one yearafter the sale of his interest. In reliance on this alleged promise and his confidentialrelationship with the defendants, he transferred his interest in the property to thedefendants, and thereafter continued to make expenditures in connection with theproperty and boat. Finally, his allegations that he made all expenditures for the propertyand boat during a period of 7
Moreover, the Supreme Court, upon dismissing the second, third, and fourth causesof action, improperly did so "with prejudice." A dismissal for failure to state a cause ofaction based on the insufficiency of the allegations in the pleading is not a dismissal onthe merits, and does not bar the adequate repleading of the claim in a subsequent action(see 175 E. 74th Corp. v Hartford Acc. & Indem. Co., 51 NY2d 585, 590 n1 [1980]; Hae Sheng Wang vPao-Mei Wang, 96 AD3d 1005, 1008 [2012]; Pereira v St. Joseph'sCemetery, 78 AD3d 1141, 1142 [2010]; Sullivan v Nimmagadda, 63 AD3d 908, 909 [2009]; Janssen v Incorporated Vil. ofRockville Ctr., 59 AD3d 15, 24, 27-28 [2008]; cf. Pitcock v Kasowitz, Benson,Torres & Friedman, LLP, 80 AD3d 453, 454 [2011]). Since the court'sdismissal of the second, third, and fourth causes of action was based on the insufficiencyof the allegations in the amended complaint, the dismissal was not on the merits, and thejudgment should be modified by deleting the provisions thereof dismissing these causesof action "with prejudice."
The plaintiff's remaining contentions are not properly before this Court, as they wereimproperly raised for the first time on appeal (see Daly v Kochanowicz, 67 AD3d 78, 98 [2009]). Eng,P.J., Austin, Hinds-Radix and LaSalle, JJ., concur. [Prior Case History: 2011 NYSlip Op 33479(U).]