Miller v Miller 2024 NY Slip Op 34277(U) December 3, 2024 Supreme Court, New York County Docket Number: Index No. 153868/2023 Judge: Suzanne J. Adams 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: NEW YORK COUNTY CLERK 12/04/2024 03:51 PM INDEX NO. 153868/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/04/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON.SUZANNEJ.ADAM S PART 39M Justice -------------------------------------------------------------------------X INDEX NO. 153868/2023 MILES MILLER, MOTION DATE N/A Plaintiff, MOTION SEQ. NO. _ _ _0_0_2_ _
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PTAH MILLER, AL Ml LLER, and 45-53 WEST 110TH . DECISION + ORDER ON STREET HDFC, MOTION Defendants.
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The following e-filed documents, listed by NYSCEF document number (Motion 002) 25, 26, 27, 28, 29, 30,31,32, 33, 34, 37, 38, 39,40,44 were read on this motion to DISMISS
Upon the foregoing documents, it is ordered that defendant 45-53 West 110th Street
HDFC's (th~ "Co-op") motion is granted in part for the reasons set forth below. The Co-op is a
New York cooperative corporation with its principal place of business at 45 Central Park North,
New York, New York. Plaintiff alleges that he is a resident of Apartment 6D at 45 Central Park
North, New York, New York. Defendant Ptah Miller (Ptah) is plaintiff's half-brother and
defendant Al Miller(Al) is the father of both plaintiff and Ptah, and a former board member of the
Co-op. Plaintiff alleges that in May 2012, he moved into the apartment at issue with his
grandmother,·non-party Bettijean Miller (Bettijean), who at the time was the owner of the shares
assigned to that unit. Plaintiff and Bettijean lived together at the subject premises until Bettijean's
death on May 2, 2017. Al served as the executor of Bettijean's estate. Several weeks after
Bettijean's death, Al moved Ptah into the unit with plaintiff. Plaintiff alleges that in November
2018, Al informed him that Bettijean's shares would be transferred to plaintiff's name. However,
later that month, Al allegedly told him that the shares would be placed in Ptah's name. Ptah
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receives disability benefits and requires Al's aid, and in order to allow Ptah to qualify as· a
shareholder, Al and Ptah promised plaintiff that he would be allowed to continue living in. the
subject premises for the rest of his life if he provided the financial resources to allow Ptah be
approved as a shareholder of the Co-op and afford the maintenance. Plaintiff alleges that he trusted
that Al and Ptah were trying to maintain the status quo, allowing plaintiff to continue living in the
unit in return for providing financial stability. As a result of plaintiffs financial support, the shares
were transferred to Ptah on or about August 13, 2019. Plaintiff alleges he has provided financial
assistance. towards the premises' maintenance fees. On January 24, 2023, Ptah presented plaintiff
with a 90-day notice of termination.
Plaintiff commenced this action in April 2023, · asserting causes of action sounding in
fraudulent misrepresentation, unjust enrichment/quantum meruit, and constructive trust, and
further alleging that defendants are attempting to harass and intimidate plaintiff into vacating the
unit and abandoning his interest therein. On September 6, 2023, this court granted a preliminary
injunction enjoining defendants from evicting plaintiff during the pendency of this action. The
Co-op now moves pursuant to CPLR 3211 (a) (1) and (7), to dismiss the complaint as against it.
Plaintiff opposes the motion.
On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must "accept the facts as
alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference,
and determine only whether the facts as alleged fit within any cognizable legal theory." Leon v
Martinez, 84 NY2d 83, 87-88 [1994]. Further, a motion to dismiss pursuant to CPLR 3211 (a) (1)
"may be appropriately granted only where the documentary evidence utterly refutes plaintiffs
factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life
Ins. Co. ofNY., 98 NY2d 314,326 [2002]).
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The Co-op argues that the fraudulent :misrepresentation claim must be dismissed because
it fails to plead any fraud by the cooperative or the Board. In additi
the Board's approval of the transfer of shares is protected by the business judgment rule. To state
a cause of action for fraudulent misrepresentation, the plaintiff must allege '" a misrepresentation
or a material omission'offact which was false and known to be false by [the] defendant, made for
the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the
misrepresentation or material omission, and injury"' (Pasternack v Laboratory Corp. of Am.
Holdings, 27 NY3d 817, 827 [2016], rearg denied 28 NY3d 956 [2016], quoting Mandarin
Trading Ltd. v Wildenstein, 16 NY3d 173, 178 [2011]). Further, CPLR 3016 (b) requires that
misrepresentation or fraud be pled with particularity. Here, the complaint fails to allege any
misrepresentations or material omissions of fact by the Co-op, warranting dismissal of the first
cause of action as against it.
Regarding the second cause of action for unjust enrichment, the Co-op argues that plaintiff
fails to allege a sufficient relationship to sustain an unjust enrichment claim or how the Co-op was
enriched. "To state a claim for unjust enrichment, a plaintiff must allege that: '(1) the [defendant]
was enriched, (2) at [plaintiffs] expense, and (3) that it is against equity and good conscience to
permit the [defendant] to retain what is sought to be recovered."' Schroeder v Pinterest Inc., 133
AD3d 12, 26 [1st Dept 2015], quoting Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 516
[2012]. In addition, "a plaintiff cannot succeed on an unjust enrichment claim unless it has a
sufficiently close relationship with the other party." Schroeder, 133 AD3d at 26 [internal quotation
marks and citation omitted]). Even if the complaint adequately pied a sufficient relationship
between plaintiff and the Co-op, it fails to allege that the Co-op was enriched at plaintiff's expense
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or that it is unjust for the Co-op to retain plaintiff's funds. As such, the second cause of action is
also dismissed against the Co-op.
Finally, the Co-op contends that plaintiffs constructive trust claim should be dismissed
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Miller v Miller 2024 NY Slip Op 34277(U) December 3, 2024 Supreme Court, New York County Docket Number: Index No. 153868/2023 Judge: Suzanne J. Adams 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: NEW YORK COUNTY CLERK 12/04/2024 03:51 PM INDEX NO. 153868/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/04/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON.SUZANNEJ.ADAM S PART 39M Justice -------------------------------------------------------------------------X INDEX NO. 153868/2023 MILES MILLER, MOTION DATE N/A Plaintiff, MOTION SEQ. NO. _ _ _0_0_2_ _
- V-
PTAH MILLER, AL Ml LLER, and 45-53 WEST 110TH . DECISION + ORDER ON STREET HDFC, MOTION Defendants.
------------------------------------------------------ ---X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 25, 26, 27, 28, 29, 30,31,32, 33, 34, 37, 38, 39,40,44 were read on this motion to DISMISS
Upon the foregoing documents, it is ordered that defendant 45-53 West 110th Street
HDFC's (th~ "Co-op") motion is granted in part for the reasons set forth below. The Co-op is a
New York cooperative corporation with its principal place of business at 45 Central Park North,
New York, New York. Plaintiff alleges that he is a resident of Apartment 6D at 45 Central Park
North, New York, New York. Defendant Ptah Miller (Ptah) is plaintiff's half-brother and
defendant Al Miller(Al) is the father of both plaintiff and Ptah, and a former board member of the
Co-op. Plaintiff alleges that in May 2012, he moved into the apartment at issue with his
grandmother,·non-party Bettijean Miller (Bettijean), who at the time was the owner of the shares
assigned to that unit. Plaintiff and Bettijean lived together at the subject premises until Bettijean's
death on May 2, 2017. Al served as the executor of Bettijean's estate. Several weeks after
Bettijean's death, Al moved Ptah into the unit with plaintiff. Plaintiff alleges that in November
2018, Al informed him that Bettijean's shares would be transferred to plaintiff's name. However,
later that month, Al allegedly told him that the shares would be placed in Ptah's name. Ptah
153868/2023 MILLER, MILES vs. MILLER, PTAH ET AL Page 1 of 5 Motion No. 002
1 of 5 [* 1] FILED: NEW YORK COUNTY CLERK 12/04/2024 03:51 PM INDEX NO. 153868/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/04/2024
receives disability benefits and requires Al's aid, and in order to allow Ptah to qualify as· a
shareholder, Al and Ptah promised plaintiff that he would be allowed to continue living in. the
subject premises for the rest of his life if he provided the financial resources to allow Ptah be
approved as a shareholder of the Co-op and afford the maintenance. Plaintiff alleges that he trusted
that Al and Ptah were trying to maintain the status quo, allowing plaintiff to continue living in the
unit in return for providing financial stability. As a result of plaintiffs financial support, the shares
were transferred to Ptah on or about August 13, 2019. Plaintiff alleges he has provided financial
assistance. towards the premises' maintenance fees. On January 24, 2023, Ptah presented plaintiff
with a 90-day notice of termination.
Plaintiff commenced this action in April 2023, · asserting causes of action sounding in
fraudulent misrepresentation, unjust enrichment/quantum meruit, and constructive trust, and
further alleging that defendants are attempting to harass and intimidate plaintiff into vacating the
unit and abandoning his interest therein. On September 6, 2023, this court granted a preliminary
injunction enjoining defendants from evicting plaintiff during the pendency of this action. The
Co-op now moves pursuant to CPLR 3211 (a) (1) and (7), to dismiss the complaint as against it.
Plaintiff opposes the motion.
On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must "accept the facts as
alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference,
and determine only whether the facts as alleged fit within any cognizable legal theory." Leon v
Martinez, 84 NY2d 83, 87-88 [1994]. Further, a motion to dismiss pursuant to CPLR 3211 (a) (1)
"may be appropriately granted only where the documentary evidence utterly refutes plaintiffs
factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life
Ins. Co. ofNY., 98 NY2d 314,326 [2002]).
153868/2023 MILLER, MILES vs. MILLER, PTAH ET AL Page 2of 5 Motion No. 002
2 of 5 [* 2] FILED: NEW YORK COUNTY CLERK 12/04/2024 03:51 PM INDEX NO. 153868/2023 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 12/04/2024
The Co-op argues that the fraudulent :misrepresentation claim must be dismissed because
it fails to plead any fraud by the cooperative or the Board. In additi
the Board's approval of the transfer of shares is protected by the business judgment rule. To state
a cause of action for fraudulent misrepresentation, the plaintiff must allege '" a misrepresentation
or a material omission'offact which was false and known to be false by [the] defendant, made for
the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the
misrepresentation or material omission, and injury"' (Pasternack v Laboratory Corp. of Am.
Holdings, 27 NY3d 817, 827 [2016], rearg denied 28 NY3d 956 [2016], quoting Mandarin
Trading Ltd. v Wildenstein, 16 NY3d 173, 178 [2011]). Further, CPLR 3016 (b) requires that
misrepresentation or fraud be pled with particularity. Here, the complaint fails to allege any
misrepresentations or material omissions of fact by the Co-op, warranting dismissal of the first
cause of action as against it.
Regarding the second cause of action for unjust enrichment, the Co-op argues that plaintiff
fails to allege a sufficient relationship to sustain an unjust enrichment claim or how the Co-op was
enriched. "To state a claim for unjust enrichment, a plaintiff must allege that: '(1) the [defendant]
was enriched, (2) at [plaintiffs] expense, and (3) that it is against equity and good conscience to
permit the [defendant] to retain what is sought to be recovered."' Schroeder v Pinterest Inc., 133
AD3d 12, 26 [1st Dept 2015], quoting Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 516
[2012]. In addition, "a plaintiff cannot succeed on an unjust enrichment claim unless it has a
sufficiently close relationship with the other party." Schroeder, 133 AD3d at 26 [internal quotation
marks and citation omitted]). Even if the complaint adequately pied a sufficient relationship
between plaintiff and the Co-op, it fails to allege that the Co-op was enriched at plaintiff's expense
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or that it is unjust for the Co-op to retain plaintiff's funds. As such, the second cause of action is
also dismissed against the Co-op.
Finally, the Co-op contends that plaintiffs constructive trust claim should be dismissed
because plaintiff fails to allege any promise made by the Coop. Generally, a constructive trust
requires "( 1) a· confidential or fiduciary relation, (2). a promise, (3) a transfer in reliance thereon
and (4) unjust enrichment" (Frazier v Barnes, 226 AD3d 566, 567 [1st Dept 2024] [internal
quotation marks and citation omitted]). Here, even liberally construing the first element, the
complaint fails to allege that the Co-op made any promises to plaintiff; rather, it alleges that Ptah
and Al promised that he. would be given a life estate. Thus, the third cause of action must be
dismissed against the Co-op.
Plaintiff argues that the Co-op is a necessary party "as the subject of this action [is] in
essence the shares of a co-op which gives rights to the subject property, [and] a notice to pendency
could not be filed and so, the Defendant is named and required as a party to ensure the Plaintiffs
interests in this action" (NYSCEF Doc No. 40 at 3). The Co-op counters that plaintiffs claims
seek relief against the other defendants, and he seeks monetary and equitable relief which would
not require any action. by the Co-op. CPLR 1001 (a) provides that "[p]ersons who ought to be
parties if complete relief is to be accorded between the persons who are parties to the action or
who might be inequitably affected by a judgment in the action shall be made plaintiffs or
defendants." However, even if plaintiff succeeds in proving that Al and Ptah promised him a life
estate, the Co-op would not have to issue any new shares or execute any documents acknowledging
the life estate. Thus, the Co-op is not a necessary party to the constructive trust cause of action or
any other cause of action, as complete relief can be afforded to the parties without its presence and
the Co-op would not be inequitably affected by a judgment rendered in this action (see generally
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Panetta v Kelly, 17 AJ?3d 163, 166 [1st Dept 2005], Iv dismissed 5 NY3d 783 [2005]. Given that
the Co-op is not a necessary party, it is entitled to dismissal of the complaint. Finally, the Co-op's
request for costs and attorney's fees is denied.
Accordingly,· it is hereby
· ORDERED that the motion of defendant 45-53 West 110th Street HDFC to dismiss is
granted and the complaint is dismissed in its entirety as against said defendant, and the Clerk is
directed to enter judgment accordingly in favor of said defendant, and the motion is otherwise
denied; and it is further
ORDERED thatthe action is severed and continued against the remaining defendants, and
the caption shall be amended to reflect the dismissal and all future papers filed with the court bear
the ame11ded caption; and it is further
ORDERED that counsel for the moving party shall serve a copy of this order with notice
of entry upon the Clerk of the Court and the Clerk of the General Clerk's Office, who are directed
to mark the court's rec?rds to reflect the change in the caption herein..
This constitutes the decision and order of the court.
12/3/2024 DATE SUZANNE J. ADAMS, J.S.C.
~ CHECK ONE: CASE DISPOSED NON.•FINAL DISP. OSITION GRANTED □ [?ENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER . SUBMIT ORDER
CHECK IF APPROPRIATE: , INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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