Roytman v. Gluzman

2024 NY Slip Op 33870(U)

• Court: New York Supreme Court, Kings County
• Decided: October 29, 2024
• Docket: Index No. 505903/2024
• Status: Unpublished

Opinion

Roytman v Gluzman 2024 NY Slip Op 33870(U) October 29, 2024 Supreme Court, Kings County Docket Number: Index No. 505903/2024 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 10/29/2024 01:26 PM INDEX NO. 505903/2024 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 10/29/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 -------. -.-----------·-- . ------·-.. ---- .--. ·. ·X MIKHAIL ROYTMAN and ANATOLY VOS.KOBOYNIK, Plaintiffs, Decision and order

- against - Inclex No. 505903/2024

SUZANNA GLUZMAN, Defendant, October 29, 2024 ·--'---: ------.·· --- .--. -------: -- .- .-·---- .-- ·x. PRESENT: HON. LEON RUCHELSMAN Motion Seq. #1 & #2

The defendant has moved pursuant to CPLR .§3211 seeking to

dismiss the complaint for the failure to allege any causes of

action. The plaintiff has cross-moved seeking to amend the

complaint. The motions have been opposed respectively. Papers

were submitted by the parties and arguments were held. After

revi.ewing all the arguments this court now makes the following

determination..

According to the complaint, the two plaintiffs owned fifty

percent and the defendant owned fifty percent of a pb.armacy

located at 1604 Avenue M in Kings County. In late 2022 the

defendant, the supervising pharmacist informed the plaintiffs she

no longer wished td work at the pharmacy. The plaintiffs, who

are not pharmacists, hired non-party Miehe.le Shulman as the

supervising pharmacist. Thtis, ori: January 25, 2023 Shulma;n and

piaintiff Roytmc:m as manager of the pharmacy e.ntered int<:> an

employment agreement. Further, the three owrt.ers and .Shulman

ente.red into a Stock Purchase Agreement. The agrE!ement provides

.that the pha.rmacy corporation copsists of 200 shares an:d that .20%

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or 40 shares would be sold to Shulman. The agreement provides

that Gluzmart would sell 20- shares, Roytma:n would sell 10 shares

and Voskol:)oynik would sell 10 shares to Shulman by February 2024.

The complaint alleges that Gluzman refused to sell her shares to

Shulman. The first Cause of action alleges breach of contract

and further seeks specific performa:nce, since withdrawn,

requiring Gluzman to sell 20 shares to Shulman. The second cause

of action alleges a breach of fiduciary duty. The third cause of

action alleges a: breach of the covenant of good faith a:ndfair

dealing, The defendant has now moved se_eking to dismiss the

complaint on the grounds it fails to allege any Cause of action.

As noted, the motion is opposed.

Conclusions of Law

It is well settled that upon a motion to dismiss the court

must determine, accepting the allegations of' the complaint a:s

true, whethe·r the party cah succeed upon any reasonable view of those. facts ( Perez v., Y & M Transportation Corporation:, 219 AD3d

1449, 196 NYS3d 145 [2d Dept., 2023J.). Further; all the

allegations in the complaint are deemed true and all reasonable

inferences rrta:y be drawn in favor of the plaintiff (Archival Inc.,

v .. 177 Rea!tY C6rb., 220 AD3d 909, 1S8 NYS2d 567 [2d D~pt.,

2023'] i, Whethe.r the complaint will lc:l.ter survive a motion fOr

surnmary judgment; or whether the plairtti,ff will ultimately be

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able to prove its claims, of course, plays no part ih the

determination of a pre-:-discovery CPLR §3211 motion to dismiss

(see, Lam v. Weiss, 219 AD3d 713, 195 NYS3d 488 [2d Dept.,

ZOZ3] l.

It is well settled that to succeed upon a claim of breach of

contract the plaintiff must establish the existence of a

contract, the plaintiff's performance, the defendant's breach and

resulting damages (Harris v. Seward Park Housing Corp., 79 AD3d

425, 913 NYS2d 161 [Pt Dept., 2010]). Therefore, where a

plaintiff cannot demonstrate any damages were suffered the

Complaint fails to adequately ctllege any breach of contract c1aim

(see, Tillage Commodities Fund L.P., v. SS&C Technologies Inc.,

151 AD3d 607, 5-8 NYS3d 28 [1st Dept., 20l7] ) . Again, in Milan

Music Inc .• v. Emmel ComtnU:hications Booking Inc., 37 AD3d 206,

829 NYS2d 4 85 [ 1 st Dept., 2 007] cite,d ~y defendant the court

stated that "without a clear demonstration of damages; there can

be no claim for breach of contract" (id). However, the Second

Department, in Perry v. McMahan, 164 AD3d 1488, 84 J:s!YS3d 508 [2d

Dept., 2018] held that "in breach of contract actions, actual

damages are hot an essential ,element, and nominal damages are

1cecoverable to vindicate contract x:ights" {id} . Again, in AB Oil

Se.rvices Ltd., v. TCE. Irisura:nce Services Inc., 188. AD3d 6-24, 133

NYS3d 638 [2d Dept., 2021] the .court held a cause of action for

b.reach o.'f contract should not be disrniss.ed where no actuai

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damages an:c: alleged since nominal damages, are always available,

This may only afford the plaintiff with nominal damages as an

eventual award since no actual damages are alleged (see, Ross v.

Sherman, 95 AD3d llOQ, 944 NYS2d 620 [2d Dept., Z012J). However,

the absence of actual damages is hot a basis upon which to

dismiss the breach of contract cause of action. Therefore, the

motion seeking to dismiss the first cause of action is denied.

Next; to succeed on a claim for breach of a fiduciary dutyi

a party must establish the existence of the following three

elements: (1) a fiduciary·relationship existed between plaintiff

ahd defendant, (2) misconduct arid (3) damages that were directly

caused by the misconduct (Kurtzman v Bergstol, 40 AD3d 588, 835

NYS2d 644, 646 [2d Dept., 2007L ~ , Birnbaum v. Birnbaum, 73

NY2d 46li 541 NYS2d 746 [1989]}. It is true that when a claim

for breach-of a fiduciary duty is merely duplicative of a breach

of contract claim where they are based on the same facts and seek

the same damage then the breach of fiduciary claim cannot stand

(Pacella v, Town of Newburgh Volunteer Ambulance Corps. Inc,., 164

AD3ci 80:9, 83 NYS3d 24 6 [ 2d Dept., 2018]) . Thus, any breach of

fiduciary duty based upon the defendant's failure to sell the

shares pursuant to the agreement is surely duplicative. However,

the other allegations of inter.feren:ce with the operations of the

business are different than the breach of contract allegations

and can support cla;im$ for the breach of a fiduqiary duty.

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Consequently, the motion seeking to dismiss the second cause of. action is denied.

Next, the third and last cause of action asserts a claim for

the breach bf the covenant of good faith and fair dealing. It is

well settled that a cause of action is premised upon parties to a

contract exercising good faith while perforrning the terms of an

agreement (Van Valkenburqh Nooqer & Neville v. Hayden Publishing

Cd., 30 NY2d 34, 330 NYS2d 329 [1972]). However, that cause. of

action i-s not applicable when it is duplicative of a breach of

contract claim (P. S. Finance LLC v. Eureka Woodworks Inc., 214

AD3d 1, 184 AD3d 114 [2d Dept., 2-023]).

This claim is entirely duplicative of the breach of contract

cause of action. Consequently, tl1.e motion seeking to dismiss

this cause o.f action is granted.

The plaintiff 11as moved seeking to amend the complaint,

however, did not actually propose any specific amendments and

merely sought amendments in the abstract. The court cannot grant any s.uch amendments thaf. are not clearly defined. Therefore, the

m.otion seeking to amend the complaint is denied at this time

without prejudice.

So ordered.

ENTER:

DATED..: 0.ctober29, 202.4 ~ Br6ok1yri N.Y. Hbn. Le6ri Ruchelsrnan JSG

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