Saleeby v. Remco Maintenance, LLC

Appellate Division of the Supreme Court of New York

Saleeby v. Remco Maintenance, LLC

2017 NY Slip Op 2140, 148 A.D.3d 570, 50 N.Y.S.3d 330

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 23, 2017

Docket3478 650371/16

StatusPublished

This text of 2017 NY Slip Op 2140 (Saleeby v. Remco Maintenance, LLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Saleeby v. Remco Maintenance, LLC, 2017 NY Slip Op 2140, 148 A.D.3d 570, 50 N.Y.S.3d 330 (N.Y. Ct. App. 2017).

Pincite

Opinion

Order, Supreme Court, New York County (Anil C. Singh, J.), entered July 26, 2016, which granted defendants’ motions to dismiss plaintiff’s claim for conversion and his contract claims as to defendants Tilton and Patriarch, unanimously affirmed, with costs.

While plaintiff pleaded facts and damages in support of his conversion claim that were independent of his breach of contract claim, his 7.5% “common interest” ownership share in a limited liability company was a type of intangible property *571 that could not be the subject of a conversion claim (see C & B Enters. USA, LLC v Koegel, 136 AD3d 957, 958 [2d Dept 2016]; Peters v Gould, 2012 NY Slip Op 33913[U], *19-20 [Sup Ct, NY County 2012]).

Plaintiff’s breach of contract claim against Tilton, in her role as manager of Remco LLC was also properly dismissed. As a manager, Tilton is not liable for the debts of the LLC (see Del Code Ann tit 6, § 18-303). Plaintiff’s attempt to use the limitation of liability provision in the LLC’s operating agreement is unavailing. Such provisions cannot be used to create additional duties on the manager (see Fisk Ventures, LLC v Segal, 2008 WL 1961156, 2008 Del Ch LEXIS 158 [May 7, 2008], affd 984 A2d 124 [Del 2009]; Dawson v Pittco Capital Partners, L.P, 2012 WL 1564805, 2012 Del Ch LEXIS 92 [Apr. 30, 2012]).

Finally, plaintiff’s claims for breach of contract against Tilton and Patriarch under an alter ego theory were properly dismissed. Plaintiff alleged no more than that Tilton was manager of Remco, and president of the entities that held a majority ownership of Remco. Patriach was alleged to simply have an ownership or management role with regard to those other entities. This was clearly insufficient to impose alter ego liability (see Doberstein v G-P Indus., Inc., 2015 WL 6606484, *4, 2015 Del Ch LEXIS 275, *12-15 [Oct. 30, 2015, CA No. 9995-VCP]).

Concur — Tom, J.P., Friedman, Mazzarelli, Kapnick and Kahn, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, New York County (Anil C. Singh, J.), entered July 26, 2016, which granted defendants’ motions to dismiss plaintiff’s claim for conversion and his contract claims as to defendants Tilton and Patriarch, unanimously affirmed, with costs.

While plaintiff pleaded facts and damages in support of his conversion claim that were independent of his breach of contract claim, his 7.5% “common interest” ownership share in a limited liability company was a type of intangible property *571 that could not be the subject of a conversion claim (see C & B Enters. USA, LLC v Koegel, 136 AD3d 957, 958 [2d Dept 2016]; Peters v Gould, 2012 NY Slip Op 33913[U], *19-20 [Sup Ct, NY County 2012]).

Plaintiff’s breach of contract claim against Tilton, in her role as manager of Remco LLC was also properly dismissed. As a manager, Tilton is not liable for the debts of the LLC (see Del Code Ann tit 6, § 18-303). Plaintiff’s attempt to use the limitation of liability provision in the LLC’s operating agreement is unavailing. Such provisions cannot be used to create additional duties on the manager (see Fisk Ventures, LLC v Segal, 2008 WL 1961156, 2008 Del Ch LEXIS 158 [May 7, 2008], affd 984 A2d 124 [Del 2009]; Dawson v Pittco Capital Partners, L.P, 2012 WL 1564805, 2012 Del Ch LEXIS 92 [Apr. 30, 2012]).

Finally, plaintiff’s claims for breach of contract against Tilton and Patriarch under an alter ego theory were properly dismissed. Plaintiff alleged no more than that Tilton was manager of Remco, and president of the entities that held a majority ownership of Remco. Patriach was alleged to simply have an ownership or management role with regard to those other entities. This was clearly insufficient to impose alter ego liability (see Doberstein v G-P Indus., Inc., 2015 WL 6606484, *4, 2015 Del Ch LEXIS 275, *12-15 [Oct. 30, 2015, CA No. 9995-VCP]).

Concur — Tom, J.P., Friedman, Mazzarelli, Kapnick and Kahn, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

2017 NY Slip Op 2140, 148 A.D.3d 570, 50 N.Y.S.3d 330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saleeby-v-remco-maintenance-llc-nyappdiv-2017.

Opinion

Related

Cite This Page — Counsel Stack