| Mawere v Landau |
| 2015 NY Slip Op 06317 [130 AD3d 986] |
| July 29, 2015 |
| Appellate Division, Second Department |
[*1]
| Jonathan Mawere, Appellant, v Joel Landau etal., Respondents. |
Annette G. Hasapidis, South Salem, N.Y., for appellant.
Garfunkel Wild, P.C., Great Neck, N.Y. (Roy W. Breitenbach and Justin M. Vogelof counsel), respondent pro se and for respondents Joel Landau, Jack Basch, LeibelRubin, Marvin Rubin, Solomon Rubin, Alliance Health Associates, Inc., Alliance HealthProperty, LLC, and Judith Eisen.
In an action, inter alia, to recover damages for breach of contract, the plaintiffappeals, as limited by his brief, from so much of an order of the Supreme Court, KingsCounty (Schmidt, J.), dated May 15, 2013, as granted those branches of the motion of thedefendants Joel Landau, Jack Basch, Leibel Rubin, Marvin Rubin, Solomon Rubin,Alliance Health Associates, Inc., and Alliance Health Property, LLC, which werepursuant to CPLR 3211 (a) to dismiss the first, fifth, seventh, eighth, tenth, sixteenth, andseventeenth causes of action, the third and twelfth causes of action insofar as assertedagainst each of them, and the ninth cause of action insofar as asserted against thedefendants Leibel Rubin, Marvin Rubin, and Solomon Rubin, and those branches of theseparate motion of the defendants Judith Eisen and Garfunkel Wild, P.C., which werepursuant to CPLR 3211 (a) to dismiss the eleventh and fourteenth causes of action andthe third and twelfth causes of action insofar as asserted against each of them, and, ineffect, denied his application for leave to replead.
Ordered that on the Court's own motion, the notice of appeal from so much of theorder as, in effect, denied the plaintiff's application for leave to replead is deemed to bean application for leave to appeal from that portion of the order, and leave to appeal isgranted (see CPLR 5701 [c]); and it is further,
Ordered that the order is modified, on the law and in the exercise of discretion, (1) bydeleting the provision thereof, in effect, denying the plaintiff's application for leave toreplead the seventh, eighth, and sixteenth causes of action, and substituting therefor aprovision granting that application, and (2) by deleting the provision thereof grantingthose branches of the motion of the defendants Judith Eisen and Garfunkel Wild, P.C.,which were pursuant to CPLR 3211 (a) to dismiss the eleventh and fourteenth causes ofaction, and substituting therefor a provision denying those branches of the motion; as somodified, the order is affirmed insofar as appealed from, without costs ordisbursements.
The instant action involves the purchase of Ruby Weston Manor and Marcus GarveyResidential Rehab Pavilion, Inc., which were both financially troubled nursing homefacilities [*2]located in Brooklyn. The plaintiff, JonathanMawere, alleges that the defendants Joel Landau and Jack Basch agreed to jointlypurchase and operate the facilities together with him, via operating companies, thenominal defendants Alliance Health Associates, Inc., and Alliance Health Property, LLC,but that Landau and Basch, along with the defendants Leibel Rubin, Marvin Rubin, andSolomon Rubin (hereinafter collectively the purchasing defendants) ultimately excludedhim from the transaction. He further alleges that the defendants Garfunkel Wild, P.C.,and Judith Eisen, a partner in that firm (hereinafter together the law firm defendants),breached fiduciary obligations they owed to him by helping the purchasing defendantscomplete the transaction. The purchasing and nominal defendants moved, and the lawfirm defendants separately moved, inter alia, pursuant to CPLR 3211 (a) to dismiss thecomplaint insofar as asserted against each of them. The Supreme Court granted thosebranches of the motions, and the plaintiff appeals.
"A motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint on the groundthat the action is barred by documentary evidence may be granted only where thedocumentary evidence utterly refutes the plaintiff's factual allegations, therebyconclusively establishing a defense as a matter of law" (Vertical Progression, Inc. v CanyonJohnson Urban Funds, 126 AD3d 784, 786 [2015] [internal quotation marksomitted]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326[2002]).
In considering a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), "thecourt must accept the facts as alleged in the complaint as true, accord plaintiffs thebenefit of every possible favorable inference, and determine only whether the facts asalleged fit within any cognizable legal theory" (Sokol v Leader, 74 AD3d 1180, 1181 [2010] [internalquotation marks omitted]; seeNonnon v City of New York, 9 NY3d 825, 827 [2007]; Leon vMartinez, 84 NY2d 83, 87-88 [1994]). A court may consider evidentiary materialsubmitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211 (a)(7) (see CPLR 3211 [c]; Sokol v Leader, 74 AD3d at 1181). Whenevidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR3211 (a) (7), and the motion has not been converted to one for summary judgment, "thecriterion is whether the [plaintiff] has a cause of action, not whether he [or she] hasstated one, and, unless it has been shown that a material fact as claimed by the [plaintiff]to be one is not a fact at all and unless it can be said that no significant dispute existsregarding it . . . dismissal should not eventuate" (Guggenheimer vGinzburg, 43 NY2d 268, 275 [1977]; see Vertical Progression, Inc. v CanyonJohnson Urban Funds, 126 AD3d at 786).
The Supreme Court properly granted that branch of the purchasing and nominaldefendants' motion which was pursuant to CPLR 3211 (a) (7) to dismiss the seventh andeighth causes of action, alleging breach of an oral joint venture agreement, assertedagainst Landau and Basch. "The essential elements of a joint venture are an agreementmanifesting the intent of the parties to be associated as joint venturers, a contribution bythe coventurers to the joint undertaking (i.e., a combination of property, financialresources, effort, skill or knowledge), some degree of joint proprietorship and controlover the enterprise; and a provision for the sharing of profits and losses" (Commander Terms. Holdings, LLCv Poznanski, 84 AD3d 1005, 1009 [2011] [internal quotation marks omitted];see Clarke v Sky Express,Inc., 118 AD3d 935, 936 [2014]). The plaintiff failed to state a cause of actionbased on a joint venture agreement because he failed to allege "a mutual promise orundertaking to share the burden of the losses of the alleged enterprise" (Rocchio v Biondi, 40 AD3d615, 616 [2007]; see Matter of Steinbeck v Gerosa, 4 NY2d 302, 317[1958]; First KeystoneConsultants, Inc. v DDR Constr. Servs., 74 AD3d 1135, 1137 [2010]; Latture v Smith, 1 AD3d408, 408-409 [2003]).
However, viewing the record as a whole, and considering that the complaintsufficiently pleaded all other essential elements of a joint venture agreement, theSupreme Court should have granted the plaintiff's application for leave to replead theseventh and eighth causes of action, which was made in opposition to the purchasing andnominal defendants' motion to dismiss (see Sheridan v Carter, 48 AD3d 447, 448-449 [2008];see also Holt v Columbia Broadcasting Sys., 22 AD2d 791 [1964]).
Furthermore, although the Supreme Court properly granted that branch of thepurchasing and nominal defendants' motion which was pursuant to CPLR 3211 (a) (7) todismiss the sixteenth cause of action, which sought the imposition of a constructive trust,on the ground that the plaintiff failed to sufficiently allege the existence of a confidentialor fiduciary relationship (see [*3]Rocchio vBiondi, 40 AD3d at 616), under the circumstances presented here, it should havegranted the plaintiff's application for leave to replead that cause of action as well (seeSheridan v Carter, 48 AD3d at 448-449).
The Supreme Court properly granted that branch of the purchasing and nominaldefendants' motion which was pursuant to CPLR 3211 (a) (7) to dismiss the first cause ofaction, alleging fraud, asserted against Landau and Basch, since the plaintiff failed toallege fraud collateral to the terms of the alleged joint venture agreement between theplaintiff and those defendants (see McGee v J. Dunn Constr. Corp., 54 AD3d 1010 [2008];Kaufman v Torkan, 51AD3d 977, 980 [2008]; Rocchio v Biondi, 40 AD3d at 617). Moreover, theplaintiff alleged no out-of-pocket losses resulting from the fraud, and claimed damagesto compensate him only for "what [he] might have gained" (Continental Cas. Co. vPricewaterhouseCoopers, LLP, 15 NY3d 264, 271 [2010]; Lama HoldingCo. v Smith Barney, 88 NY2d 413, 421 [1996]; Route 217, LLC v Greer, 119 AD3d 1018, 1019-1020[2014]). Furthermore, the Supreme Court properly directed the dismissal of the ninthcause of action, insofar as it alleged tortious interference with contractual relationsagainst the defendants Leibel Rubin, Marvin Rubin, and Solomon Rubin, as thecomplaint failed to adequately plead that those defendants intentionally procured Landauand Basch's alleged breach of the joint venture agreement (see Orchid Constr. Corp. vGottbetter, 89 AD3d 708, 709 [2011]; Washington Ave. Assoc. v EuclidEquip., 229 AD2d 486, 487 [1996]).
The Supreme Court properly granted those branches of the purchasing and nominaldefendants' motion which were pursuant to CPLR 3211 (a) (7) to dismiss the seventeenthcause of action, seeking an accounting, asserted against the purchasing and nominaldefendants, and the fifth and tenth causes of action, alleging negligent misrepresentationand breach of fiduciary duty, respectively, asserted against Landau and Basch. Thecomplaint failed to state a cause of action for an accounting, as the plaintiff failed toallege that he made a demand for an accounting, that the purchasing and nominaldefendants were in possession of the books, records, profits, or other assets of the allegedjoint venture, and that they failed or refused to provide such an accounting (see NABConstr. Corp. v New York City Paper Mill, 265 AD2d 312 [1999]). Furthermore, thecourt properly directed the dismissal of the negligent misrepresentation cause of action,as the plaintiff did not allege the violation of any legal duty by Landau and Baschindependent of the duty created by the alleged joint venture agreement and, thus, theplaintiff failed to allege any legal duty that would give rise to an independent tort causeof action (see Board of Mgrs. ofSoho N. 267 W. 124th St. Condominium v NW 124 LLC, 116 AD3d 506, 507[2014]). The court also properly directed the dismissal of the breach of fiduciary dutycause of action asserted against Landau and Basch, as it is duplicative of the breach ofcontract causes of action, since those causes of action are based on the same facts andseek essentially identical damages (see Canzona v Atanasio, 118 AD3d 841, 843 [2014]; Brooks v Key Trust Co. N.A.,26 AD3d 628, 630 [2006]).
However, the Supreme Court should not have granted those branches of the law firmdefendants' motion which were pursuant to CPLR 3211 (a) (1) and (7) to dismiss theeleventh and fourteenth causes of action, alleging legal malpractice and breach offiduciary duty, asserted against them. The documentary evidence they submitted did notconclusively establish that no attorney-client relationship existed between them and theplaintiff (see CPLR 3211 [a] [1]). Furthermore, granting all favorable inferencesto the plaintiff, the allegations in the complaint were sufficient to plead the existence ofan attorney-client relationship between the law firm defendants and the plaintiff(see CPLR 3211 [a] [7];Tropp v Lumer, 23 AD3d 550, 551 [2005]), and that the law firm defendantscommitted legal malpractice and breached their fiduciary duties to the plaintiff (see Rudolf v Shayne, Dachs,Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Kurtzman v Bergstol, 40 AD3d588, 590 [2007]; Collins v Telcoa Intl. Corp., 283 AD2d 128, 134[2001]).
The Supreme Court properly granted those branches of the motions which werepursuant to CPLR 3211 (a) (7) to dismiss the third cause of action, alleging aiding andabetting fraud, asserted against all the defendants, because the complaint failed tosufficiently plead an underlying cause of action to recover damages for fraud (see Nabatkhorian vNabatkhorian, 127 AD3d 1043, 1044 [2015]).
[*4] The parties' remaining contentions are either notproperly before this Court or without merit. Skelos, J.P., Hall, Austin and Sgroi, JJ.,concur.