Brighton Bldr. LLC. v Bedford Landscape Contrs., LLC 2024 NY Slip Op 30475(U) February 13, 2024 Supreme Court, Kings County Docket Number: Index No. 510225/2023 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 02/13/2024 10:02 AM INDEX NO. 510225/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2024
SUPREME COURT OF ·THE STATE OF· NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL PART 8 ----- --- ------. --- .----- .--- --- ----x BRIGHTON BUILDER LLC. , Plaintiff, Decision arid order
against - I.nde¥ No.. sI:Q.225/2023
BEDFORD LANDSCAPE C0NT~CTORS, LLC, LEV FELDMAN, and PLAY SOLUTIONS, -INC., Defe·nctants·, February 13, 20·'24 - - - - - · - - - - - - - · ·. ·. --·-----·--· - .----: - - - - - - - - . ·.---K
P.RESENT: HOM·. LE_OI:il RUCHE.LSMAN -Motio:n Seq.. .#2 & .#J
"The p1a.intitf. has ·+noveq. _purs_uant to _CPLR §2221 seeking to
reargue a decision and order dated October 10, .2023.
Specifically , the ,plaintiff seeks to reargue the dismissal of
,_coµnt·$ four, five, six ._a.nd s·eyen ·on the grounds no defendant ever
moved seeking their dismissa1. The. defendant .Feldman and. Play
·solutions Inc., ha.s cross-mov·ect pursuant to CPLR §3-211 s-e·eking to
disrni_si;; those. very cat1se-s of action-~ Tile motions have been
op·posecl respectively . Papers were submitted by the parties and
.a..fte.i;: .. reviewing ·a.11 the.· .arguments this q.0J..1rt n..ow makes the
following determinatio n.
A,s recorded in a prior order, ·on· October 15, :2 02 0 the
.defendant Bec;iford, a construction. c:ompani hireq by the C"i.t.y of
New York to perform various work throughout the city, hire.ct the
pl-aintiff .as a· subGontactor . s·ome payments were made to tbe
plaintiff, however,- the plaintiff as$erts th_ey are still owed
$662,695.17 for work performed. The plaintiff asserted causes of
acti·on for breach o"f contr?'ct, quantur:n me.l:'.µit; c6.nve:rs·.io:h, ·breach
1 of 6 [* 1] FILED: KINGS COUNTY CLERK 02/13/2024 10:02 AM INDEX NO. 510225/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2024
of fiduci.ar y duty, breach of good faith and fair dea.lihg .and the
faithles:; :; servant d;octrine . The court di•smisEr ed them all except.
for the hreach of contrac t claim. The plainti ff has now move.ct
seeking to reargue that determi nation. As noted, the det·enda nt
has oppos~d and has cross-mo ved.
Conclus ions of Law
A motion to· rea:rgue must 1Je bas. ed upon the fa.ct ·the court
overlook ed ox misappre hended. ·fact or: law o.t for sO:m.e other reason
mistake nly Hrrived .at in its earlier decisiQn (Deutsch e Bank
Nationa l Tru'st Co., v. Russo, 170 AD.3d ·9:52, 96 f\iYSjd .617 [2d De pt . , 2 01 9 ] ) .
The motion $eekihg reargum ent is granted. Upon Teargum ent
the court will necessa rily examine the causes of action :n··ow
soctijht to.be di$miss~ d~
The four causes of action sought to be reargued and
dismisse d are only against defenda nt . Feldman arid must be ana:lyzed
in that vein.
It is well. settled. that to establis h a claim - for conversi on. the party must show the lega:-1. right to an identifi able item or
items artd that the other party has exercise d unautho rized control
a,. nd own~.rsh.: ip over tb.e i terns (Fioren. ti v ..Centra'l Emerqen cy
Physicia ns, PLLC, 305 .AD2d 4.53, 762 l'JYS2d 402 [2d Dept., 2003]).
A.s t}Te Court o.f Appeals explaine d "a c.onve.rs ion ta~es place w)1en
2 of 6 [* 2] FILED: KINGS COUNTY CLERK 02/13/2024 10:02 AM INDEX NO. 510225/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2024
someone, intention ally and without authority , assumes or
exercises control over personal property belonging to someone
else, interferin g with that person's right of possession ... Two
key elements of conversion are (1) plaintiff 's possessor y right
or interest in the property ... and. ( 2) def end ant' s dominion over.
the property or interferen ce with it, in derogatio n of
plaihtiff ' s tightsi' (see, Colavito v. New York Organ Donor
Network Inc., 8 NY3d 43, 827 NYS2d 96 [2006]). Therefore , where
a defendant "interfere d with plaintiff 's right to posse.ss th.e
property" (Hillcres t Homes, LLC v. Albion Mobile Homes, Inc., 117
AD3d 1434, 984 NYS2d 755 [4 th Dept., 20141) a conversio n has
occurred.
However, merely alleging a debt that is owed does riot
establish a cause of .action for conversion (see, Double Alpha
Inc., v. Mako Partners L.P., 2000 WL 1036034 [S.D.N.Y. 2000]).
As the court noted in Traffix Inc., v. Herold, 269 F.Supp2d 263
[S.D.N.Y; 2003] "a conversion action cannot be predicate d on an
equitable intere 9 t or a mere breach of contractu al obligation /I
(id). Indeed; the entire conversion claim :Ls premised upon the
allegation there is an unpaid balance due the_plain tiff.
However, conversio n is only applicable where there is an
"identifia ble fund and an obligation to return or otherwise treat
in a particula r manner the specific fund in questio.n"
(Manufact urers Hanover Trust Company v. Chemical Bank, 160 AD2d
3 of 6 [* 3] FILED: KINGS COUNTY CLERK 02/13/2024 10:02 AM INDEX NO. 510225/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2024
113, 559 NYS2d 704 [1 st Dept;, 1990]). In this case the.re is
me.rely ari outstandin g debt owed to the plaintiff . That does not
establish the claim of conversion . Consequen tly, the motion
seeking to dismiss this claim is granted.
The next causes of action allege breaches 6f a fiduciary
duty and brea'ches 6£ good faith and fair dealing against Lev
Feldman an employee of the plaintiff . These claims are distinct
from any claims for breach of contract since they involve a
party, Feldman, that is riot accused o.f breaching the contract at
all.
It is well settled that an employee owes a duty of good
faith and loyalty to ari employer in the performan ce of the
employee' s duties (McKinnon ·Doxsee Agency Inc., v. Gallina, 187
AD3d 7 33, 132 NYS2d 144 [2d De)?t., 2020]) . Further, an employee
maintains a fiduciary duty to an employer. As the court noted in
Nielson :Co. (US l LLC v. Success Systems Inc., 2013 WL 1197857
[S. D. N. Y. 2013] "as a matter bf law, art employee .owes a fiduciary
duty to his employer and is prohibited from acting iri any manner
inconsiste nt with his agency or trust and is at all times bound
tb exercise the utmost faith and loyalty iri the performan ce of
his dutie-s" (id) . Likewise, the cause of action for a breach of
implied covenant of good faith and fair dealing is premised upon
parties to a cpnt:r:act e'i's.ercisin g good faith while performin g the
terms of an agreement (Van Valkenburg h Nooger & 'Neville v. Hayden
4 of 6 [* 4] FILED: KINGS COUNTY CLERK 02/13/2024 10:02 AM INDEX NO. 510225/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2024
-Publishing Co., Jd. NY2d 34, 3-~o NY$-2d 32·9 [197.2]).
·A:t ttiis stage of the l;Lt.igatiort, the complaint adequately
'alleges that Feldman br·eached thes.e dllties to the plaintiff.
Free access — add to your briefcase to read the full text and ask questions with AI
Brighton Bldr. LLC. v Bedford Landscape Contrs., LLC 2024 NY Slip Op 30475(U) February 13, 2024 Supreme Court, Kings County Docket Number: Index No. 510225/2023 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 02/13/2024 10:02 AM INDEX NO. 510225/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2024
SUPREME COURT OF ·THE STATE OF· NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL PART 8 ----- --- ------. --- .----- .--- --- ----x BRIGHTON BUILDER LLC. , Plaintiff, Decision arid order
against - I.nde¥ No.. sI:Q.225/2023
BEDFORD LANDSCAPE C0NT~CTORS, LLC, LEV FELDMAN, and PLAY SOLUTIONS, -INC., Defe·nctants·, February 13, 20·'24 - - - - - · - - - - - - - · ·. ·. --·-----·--· - .----: - - - - - - - - . ·.---K
P.RESENT: HOM·. LE_OI:il RUCHE.LSMAN -Motio:n Seq.. .#2 & .#J
"The p1a.intitf. has ·+noveq. _purs_uant to _CPLR §2221 seeking to
reargue a decision and order dated October 10, .2023.
Specifically , the ,plaintiff seeks to reargue the dismissal of
,_coµnt·$ four, five, six ._a.nd s·eyen ·on the grounds no defendant ever
moved seeking their dismissa1. The. defendant .Feldman and. Play
·solutions Inc., ha.s cross-mov·ect pursuant to CPLR §3-211 s-e·eking to
disrni_si;; those. very cat1se-s of action-~ Tile motions have been
op·posecl respectively . Papers were submitted by the parties and
.a..fte.i;: .. reviewing ·a.11 the.· .arguments this q.0J..1rt n..ow makes the
following determinatio n.
A,s recorded in a prior order, ·on· October 15, :2 02 0 the
.defendant Bec;iford, a construction. c:ompani hireq by the C"i.t.y of
New York to perform various work throughout the city, hire.ct the
pl-aintiff .as a· subGontactor . s·ome payments were made to tbe
plaintiff, however,- the plaintiff as$erts th_ey are still owed
$662,695.17 for work performed. The plaintiff asserted causes of
acti·on for breach o"f contr?'ct, quantur:n me.l:'.µit; c6.nve:rs·.io:h, ·breach
1 of 6 [* 1] FILED: KINGS COUNTY CLERK 02/13/2024 10:02 AM INDEX NO. 510225/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2024
of fiduci.ar y duty, breach of good faith and fair dea.lihg .and the
faithles:; :; servant d;octrine . The court di•smisEr ed them all except.
for the hreach of contrac t claim. The plainti ff has now move.ct
seeking to reargue that determi nation. As noted, the det·enda nt
has oppos~d and has cross-mo ved.
Conclus ions of Law
A motion to· rea:rgue must 1Je bas. ed upon the fa.ct ·the court
overlook ed ox misappre hended. ·fact or: law o.t for sO:m.e other reason
mistake nly Hrrived .at in its earlier decisiQn (Deutsch e Bank
Nationa l Tru'st Co., v. Russo, 170 AD.3d ·9:52, 96 f\iYSjd .617 [2d De pt . , 2 01 9 ] ) .
The motion $eekihg reargum ent is granted. Upon Teargum ent
the court will necessa rily examine the causes of action :n··ow
soctijht to.be di$miss~ d~
The four causes of action sought to be reargued and
dismisse d are only against defenda nt . Feldman arid must be ana:lyzed
in that vein.
It is well. settled. that to establis h a claim - for conversi on. the party must show the lega:-1. right to an identifi able item or
items artd that the other party has exercise d unautho rized control
a,. nd own~.rsh.: ip over tb.e i terns (Fioren. ti v ..Centra'l Emerqen cy
Physicia ns, PLLC, 305 .AD2d 4.53, 762 l'JYS2d 402 [2d Dept., 2003]).
A.s t}Te Court o.f Appeals explaine d "a c.onve.rs ion ta~es place w)1en
2 of 6 [* 2] FILED: KINGS COUNTY CLERK 02/13/2024 10:02 AM INDEX NO. 510225/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2024
someone, intention ally and without authority , assumes or
exercises control over personal property belonging to someone
else, interferin g with that person's right of possession ... Two
key elements of conversion are (1) plaintiff 's possessor y right
or interest in the property ... and. ( 2) def end ant' s dominion over.
the property or interferen ce with it, in derogatio n of
plaihtiff ' s tightsi' (see, Colavito v. New York Organ Donor
Network Inc., 8 NY3d 43, 827 NYS2d 96 [2006]). Therefore , where
a defendant "interfere d with plaintiff 's right to posse.ss th.e
property" (Hillcres t Homes, LLC v. Albion Mobile Homes, Inc., 117
AD3d 1434, 984 NYS2d 755 [4 th Dept., 20141) a conversio n has
occurred.
However, merely alleging a debt that is owed does riot
establish a cause of .action for conversion (see, Double Alpha
Inc., v. Mako Partners L.P., 2000 WL 1036034 [S.D.N.Y. 2000]).
As the court noted in Traffix Inc., v. Herold, 269 F.Supp2d 263
[S.D.N.Y; 2003] "a conversion action cannot be predicate d on an
equitable intere 9 t or a mere breach of contractu al obligation /I
(id). Indeed; the entire conversion claim :Ls premised upon the
allegation there is an unpaid balance due the_plain tiff.
However, conversio n is only applicable where there is an
"identifia ble fund and an obligation to return or otherwise treat
in a particula r manner the specific fund in questio.n"
(Manufact urers Hanover Trust Company v. Chemical Bank, 160 AD2d
3 of 6 [* 3] FILED: KINGS COUNTY CLERK 02/13/2024 10:02 AM INDEX NO. 510225/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2024
113, 559 NYS2d 704 [1 st Dept;, 1990]). In this case the.re is
me.rely ari outstandin g debt owed to the plaintiff . That does not
establish the claim of conversion . Consequen tly, the motion
seeking to dismiss this claim is granted.
The next causes of action allege breaches 6f a fiduciary
duty and brea'ches 6£ good faith and fair dealing against Lev
Feldman an employee of the plaintiff . These claims are distinct
from any claims for breach of contract since they involve a
party, Feldman, that is riot accused o.f breaching the contract at
all.
It is well settled that an employee owes a duty of good
faith and loyalty to ari employer in the performan ce of the
employee' s duties (McKinnon ·Doxsee Agency Inc., v. Gallina, 187
AD3d 7 33, 132 NYS2d 144 [2d De)?t., 2020]) . Further, an employee
maintains a fiduciary duty to an employer. As the court noted in
Nielson :Co. (US l LLC v. Success Systems Inc., 2013 WL 1197857
[S. D. N. Y. 2013] "as a matter bf law, art employee .owes a fiduciary
duty to his employer and is prohibited from acting iri any manner
inconsiste nt with his agency or trust and is at all times bound
tb exercise the utmost faith and loyalty iri the performan ce of
his dutie-s" (id) . Likewise, the cause of action for a breach of
implied covenant of good faith and fair dealing is premised upon
parties to a cpnt:r:act e'i's.ercisin g good faith while performin g the
terms of an agreement (Van Valkenburg h Nooger & 'Neville v. Hayden
4 of 6 [* 4] FILED: KINGS COUNTY CLERK 02/13/2024 10:02 AM INDEX NO. 510225/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2024
-Publishing Co., Jd. NY2d 34, 3-~o NY$-2d 32·9 [197.2]).
·A:t ttiis stage of the l;Lt.igatiort, the complaint adequately
'alleges that Feldman br·eached thes.e dllties to the plaintiff.
'i'here;.:fore, upon reargµm_ent the rnotion $-eeking to dismiss .thes·e.
causes of action as to Feldman is denied.
Lastly, the faithless .servant doctrine was fi·rst coiried in.
Herman v. Branch M◊tor .Exores·-s Co .. ·, 67 .Mi.sc2-d 44 4, 323_ NYS-2d 7 94
[Civil Court of the City of New York, 1971] where the court stated "a ·servant who is f aithles:s to his master on -Tues.d~y
thereby forfeits the wages he ear.n.ed on Monday;' (id). 'rhe
doctrine sti3.tes that ari agent who owes .a duty. of fidelity to a
principal ·a:nci is: _.faithless in that ·duty thereby forf.:ei ts·
compensation due. (see, Phansalkar v. Anderson Weinroth & Company
L. i?. , 34 4 F3d 18 4 [2d C:ir. 2003] ) . Further, pursuant to· the
doctr·i.ne the employer is entitled to a return of a;ny compens,a-tion
paid. to an employee, during the pe.ri.od or her disloyalty (CARCO
G·RoUP, Inc., v. Macoriachy, 71.8 F3.d· "72 [2d. Cir.. 2013] ,. see, al·s-o,
Torres v. Gristede's ogerat:ing Co:i::p., 628 F.$'lJ.pp2'd 447 [S.D.N.Y.
2008 JJ •
The Verified -Complaint conta-.tn_s sµff'icie;nt allegati·orts the
defendant Feldman forfe.ited his compensation by acting in a
fa.i t.hless manner. Thus, the Ve·rifie.d_ .Complaint -asser.ts the
defend.ant imp_r.ope:r:ly too,k hegat_ive actions. again.st the plain.tiff
(.see, Verified Complaint, '.!['.![32,33 SISl13-15 of Gaunt Five,
5 of 6 [* 5] FILED: KINGS COUNTY CLERK 02/13/2024 10:02 AM INDEX NO. 510225/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/13/2024
improperly so numpered [NYSCEF Doc. No. 1]). While those
allegations will be the subject of discovery, i:l.t this stage of
the litigation they adequately allege the elements of the
faithless servant doctrine. Further discovery will surely narrow
ans sharpen these issues. Therefore, the motion seeking to
dismiss that cause of action is also denied. Thus, upon
reargument causes of action:, five, six and seven against Feldman are reinstated.
So ordered.
ENTER:
DATED: February 13, 2024 Brooklyn N.Y. Hon. Leon Ruchelsman JSC
6 of 6 [* 6]