Gouleguine v Gouleguina Mkrtycheva 2024 NY Slip Op 31366(U) April 19, 2024 Supreme Court, New York County Docket Number: Index No. 158092/2021 Judge: Paul A. Goetz 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. INDEX NO. 158092/2021 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 04/19/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 158092/2021 MARK GOULEGUINE, MOTION DATE 02/02/2024 Plaintiff, MOTION SEQ. NO. 007 - V -
MARIA GOULEGUINA MKRTYCHEVA, SOK HEIBERGER DECISION + ORDER ON LLP MOTION Defendant. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 007) 133, 134, 135, 136, 137,138,139,141,142,143,144,145,146,147,148 were read on this motion to/for AMEND CAPTION/PLEADINGS
Upon the foregoing documents, it is
Plaintiff, Mark Gouleguine moves to amend his complaint to add three causes of action
for conversion, breach of fiduciary duty, and for an accounting. Defendant opposes arguing that
the motion is procedurally defective, that the causes of action seek identical relief as other of
plaintiffs causes of action; and that the causes of action are without merit.
DISCUSSION
"In general, [i]n the absence of prejudice or surprise to the opposing party, leave to
amend a pleading should be freely granted unless the proposed amendment is palpably
insufficient or patently devoid of merit" (Thomsen v Suffolk County Police Dept., 50 AD3d 1015,
1017 [2d Dept 2008] [internal quotation marks removed]). "A request to amend a pleading,
regardless of the statutory imperative that it be freely granted ... requires an examination of the
underlying merit to determine if there is evidentiary proof that could be considered on a motion
158092/2021 GOULEGUINE, MARK vs. GOULEGUINA MKRTYCHEVA, MARIA ET AL Page 1 of 5 Motion No. 007
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for summary judgment" (Am. Theatre for Performing Arts, Inc. v Consol. Credit Corp., 45 AD3d
506 [1st Dept 2007]).
First, as a preliminary matter defendant argues that plaintiff's motion must be denied
because he did not supply a redlined proposed amended complaint along with the motion. "Any
motion to amend or supplement pleadings shall be accompanied by the proposed amended or
supplemental pleading clearly showing the changes or additions to be made to the pleading"
(CPLR § 3025). However, when the changes are "properly highlighted ... in the counsel's
affirmation and moving brief ... [this] technical defect [can be] overlooked" (Berkeley Research
Group, LLC v FTI Consulting, Inc., 157 AD3d 486,490 [1st Dept 2018]). Here, plaintiff
attached both the original and amended complaint and his attorney's affirmation is clear as to
what amendments are sought so the motion will not be denied on these grounds. However, the
substantive merit of the three additional causes of action needs to be examined.
Conversion Claim
Plaintiff seeks to add a cause of action for conversion, alleging that after selling the
apartment unit that plaintiff and defendant co-owned, defendant instructed the escrow agent,
SDK Heiberger LLP, not to disburse any funds to plaintiff until certain alleged claims of
defendants' were fully satisfied from plaintiff's portions of the proceeds.
The "elements of conversion are (1) plaintiffs possessory right or interest in the property
and (2) defendant's dominion over the property or interference with it, in derogation of plaintiffs
rights" (Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 50 [2006]). However, it is
settled under New York law that a tort claim cannot arise "where plaintiff is essentially seeking
enforcement of the bargain, [and instead] the action should proceed under a contract theory"
(Sommer v Fed. Signal Corp., 79 NY2d 540,552 [1992]; see also Advanced Oxygen Therapy
158092/2021 GOULEGUINE, MARK vs. GOULEGUINA MKRTYCHEVA, MARIA ET AL Page 2 of 5 Motion No. 007
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Inc. v Orthoserve Inc., 572 F Supp 3d 26, 38 [SDNY 2021] ["a claim for conversion cannot be
sustained where the underlying facts are not sufficiently distinguishable from a breach of
contract claim"]).
Here, plaintiff already has two causes of action seeking a declaratory judgment that he is
entitled to the full amount of his portion of the proceeds from the sale. While plaintiff argues that
these causes of action are not breach of contract claims, he is still seeking an enforcement of the
alleged agreement he had with defendant that they would evenly split the proceeds of the sale.
As such, the proposed conversion cause of action is insufficient as a matter of law and leave to
add this cause of action will be denied.
Breach ofFiduciary Duty
"To establish a prima facie case for breach of fiduciary duty, a plaintiff must allege "(1)
the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages
directly caused by the defendant's misconduct' (Vil. ofKiryas Joel v County of Orange, 144
AD3d 895, 898 [2d Dept 2016]). Here, plaintiff alleges that defendant breached a fiduciary duty
to him by demanding that the escrow agent not release the proceeds of the sale of the apartment
to him.
However, as with the conversion claim, when a cause of action for a breach of fiduciary
duty is "premised upon the same facts and seek identical damages" as a breach of contract claim
the breach of fiduciary duty claim should be dismissed ( Chowaiki & Co. Fine Art Ltd. v Lacher,
115 AD3d 600 [1st Dept 2014]). As with the conversion claim, while plaintiff does not assert a
breach of contract claim against defendant in this action, he is seeking a declaratory judgment to
enforce an agreement to divide the sale proceeds evenly. Therefore, this cause of action is
duplicative and leave to add this cause of action will be denied.
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Accounting
"An equitable accounting involves a remedy designed to require a person in possession of
financial records to produce them, demonstrate how money was expended and return pilfered
funds in his or her possession" (Metro. Bank & Tr. Co. v Lopez, 189 AD3d 443,446 [1st Dept
2020]). "The elements include a fiduciary or confidential relationship, money entrusted to the
defendant imposing the burden of an accounting, the absence of a legal remedy, and in some
cases a demand and refusal" (id.).
Here, plaintiff alleges in the amended complaint that on June 18, 2021 plaintiff "made a
demand upon Defendant to request an accounting with respect to her claims for the sum she was
allegedly owed for the carrying costs and the sums she collected from renting the apartment to
third parties during the time she exclusively occupied the apartment" (NYSCEF Doc No 137).
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Gouleguine v Gouleguina Mkrtycheva 2024 NY Slip Op 31366(U) April 19, 2024 Supreme Court, New York County Docket Number: Index No. 158092/2021 Judge: Paul A. Goetz 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. INDEX NO. 158092/2021 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 04/19/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. PAUL A. GOETZ PART 47 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 158092/2021 MARK GOULEGUINE, MOTION DATE 02/02/2024 Plaintiff, MOTION SEQ. NO. 007 - V -
MARIA GOULEGUINA MKRTYCHEVA, SOK HEIBERGER DECISION + ORDER ON LLP MOTION Defendant. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 007) 133, 134, 135, 136, 137,138,139,141,142,143,144,145,146,147,148 were read on this motion to/for AMEND CAPTION/PLEADINGS
Upon the foregoing documents, it is
Plaintiff, Mark Gouleguine moves to amend his complaint to add three causes of action
for conversion, breach of fiduciary duty, and for an accounting. Defendant opposes arguing that
the motion is procedurally defective, that the causes of action seek identical relief as other of
plaintiffs causes of action; and that the causes of action are without merit.
DISCUSSION
"In general, [i]n the absence of prejudice or surprise to the opposing party, leave to
amend a pleading should be freely granted unless the proposed amendment is palpably
insufficient or patently devoid of merit" (Thomsen v Suffolk County Police Dept., 50 AD3d 1015,
1017 [2d Dept 2008] [internal quotation marks removed]). "A request to amend a pleading,
regardless of the statutory imperative that it be freely granted ... requires an examination of the
underlying merit to determine if there is evidentiary proof that could be considered on a motion
158092/2021 GOULEGUINE, MARK vs. GOULEGUINA MKRTYCHEVA, MARIA ET AL Page 1 of 5 Motion No. 007
1 of 5 [* 1] INDEX NO. 158092/2021 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 04/19/2024
for summary judgment" (Am. Theatre for Performing Arts, Inc. v Consol. Credit Corp., 45 AD3d
506 [1st Dept 2007]).
First, as a preliminary matter defendant argues that plaintiff's motion must be denied
because he did not supply a redlined proposed amended complaint along with the motion. "Any
motion to amend or supplement pleadings shall be accompanied by the proposed amended or
supplemental pleading clearly showing the changes or additions to be made to the pleading"
(CPLR § 3025). However, when the changes are "properly highlighted ... in the counsel's
affirmation and moving brief ... [this] technical defect [can be] overlooked" (Berkeley Research
Group, LLC v FTI Consulting, Inc., 157 AD3d 486,490 [1st Dept 2018]). Here, plaintiff
attached both the original and amended complaint and his attorney's affirmation is clear as to
what amendments are sought so the motion will not be denied on these grounds. However, the
substantive merit of the three additional causes of action needs to be examined.
Conversion Claim
Plaintiff seeks to add a cause of action for conversion, alleging that after selling the
apartment unit that plaintiff and defendant co-owned, defendant instructed the escrow agent,
SDK Heiberger LLP, not to disburse any funds to plaintiff until certain alleged claims of
defendants' were fully satisfied from plaintiff's portions of the proceeds.
The "elements of conversion are (1) plaintiffs possessory right or interest in the property
and (2) defendant's dominion over the property or interference with it, in derogation of plaintiffs
rights" (Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 50 [2006]). However, it is
settled under New York law that a tort claim cannot arise "where plaintiff is essentially seeking
enforcement of the bargain, [and instead] the action should proceed under a contract theory"
(Sommer v Fed. Signal Corp., 79 NY2d 540,552 [1992]; see also Advanced Oxygen Therapy
158092/2021 GOULEGUINE, MARK vs. GOULEGUINA MKRTYCHEVA, MARIA ET AL Page 2 of 5 Motion No. 007
2 of 5 [* 2] INDEX NO. 158092/2021 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 04/19/2024
Inc. v Orthoserve Inc., 572 F Supp 3d 26, 38 [SDNY 2021] ["a claim for conversion cannot be
sustained where the underlying facts are not sufficiently distinguishable from a breach of
contract claim"]).
Here, plaintiff already has two causes of action seeking a declaratory judgment that he is
entitled to the full amount of his portion of the proceeds from the sale. While plaintiff argues that
these causes of action are not breach of contract claims, he is still seeking an enforcement of the
alleged agreement he had with defendant that they would evenly split the proceeds of the sale.
As such, the proposed conversion cause of action is insufficient as a matter of law and leave to
add this cause of action will be denied.
Breach ofFiduciary Duty
"To establish a prima facie case for breach of fiduciary duty, a plaintiff must allege "(1)
the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages
directly caused by the defendant's misconduct' (Vil. ofKiryas Joel v County of Orange, 144
AD3d 895, 898 [2d Dept 2016]). Here, plaintiff alleges that defendant breached a fiduciary duty
to him by demanding that the escrow agent not release the proceeds of the sale of the apartment
to him.
However, as with the conversion claim, when a cause of action for a breach of fiduciary
duty is "premised upon the same facts and seek identical damages" as a breach of contract claim
the breach of fiduciary duty claim should be dismissed ( Chowaiki & Co. Fine Art Ltd. v Lacher,
115 AD3d 600 [1st Dept 2014]). As with the conversion claim, while plaintiff does not assert a
breach of contract claim against defendant in this action, he is seeking a declaratory judgment to
enforce an agreement to divide the sale proceeds evenly. Therefore, this cause of action is
duplicative and leave to add this cause of action will be denied.
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Accounting
"An equitable accounting involves a remedy designed to require a person in possession of
financial records to produce them, demonstrate how money was expended and return pilfered
funds in his or her possession" (Metro. Bank & Tr. Co. v Lopez, 189 AD3d 443,446 [1st Dept
2020]). "The elements include a fiduciary or confidential relationship, money entrusted to the
defendant imposing the burden of an accounting, the absence of a legal remedy, and in some
cases a demand and refusal" (id.).
Here, plaintiff alleges in the amended complaint that on June 18, 2021 plaintiff "made a
demand upon Defendant to request an accounting with respect to her claims for the sum she was
allegedly owed for the carrying costs and the sums she collected from renting the apartment to
third parties during the time she exclusively occupied the apartment" (NYSCEF Doc No 137).
While, defendant argues that the accounting cause of action is barred by the six year statute of
limitations since plaintiff seeks records as far back as 2009, "[ c ]laims for an accounting accrue
when there is either an open repudiation of the fiduciary's obligation or a judicial settlement of
the fiduciary's account" (Campbell v Bank ofAm., NA., 155 AD3d 820, 822 [2d Dept 2017]).
Therefore, the statute of limitations began to run on June 18, 2021 when plaintiff alleges that the
defendant refused to provide him with an accounting with respect to rents collected and sums
expended in managing the apartment.
Consequently, the accounting cause of action is not "palpably insufficient or patently
devoid of merit" nor is it barred by the statute of limitations and leave to add this cause of action
will be granted (Thomsen, 50 AD3d 1017).
Accordingly, it is:
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ORDERED that the plaintiff's motion to amend his complaint is granted, to the extent that
the fifth cause of action (for an Accounting) as set forth in the proposed amended complaint in the
form annexed to the moving papers is permitted to be added, and is otherwise denied; and it is
further
ORDERED that, within 20 days from entry of this order, plaintiff shall serve a copy of this
order with notice of entry and the amended complaint in conformity herewith; and it is further
ORDERED that the defendant shall answer the amended complaint or otherwise respond
thereto within 20 days from the date of said service.
4/19/2024 DATE PAUL A. GOETZ, J.S.C.
~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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