Salvatoriello v Coady 2024 NY Slip Op 33595(U) October 8, 2024 Supreme Court, Kings County Docket Number: Index No. 500271/2024 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 10/08/2024 01:03 PM INDEX NO. 500271/2024 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 10/08/2024
SUPREME COURT. OF THE STATE OF NEW YORK COUNTY QF KINGS :. CIVIL TERM: COMMERCIAL 8 -- .. _· -·· ,-_-. ---------· ___ ,· ---------- ·---· ---· ·x_ VINCENT ~AtVATORIELLO, Ph.D., Plaintiff,. Decision and order
Index N◊- soo211/ib24 GREGORY COADY and NICHOLAS COADY, 'Defendant ·and
:S-I{YLINE: BUI~DERS -G~OUf LLC, Nomina.-1 Def end.ant, October :B, 2-0-:24 ----- ----------- ---- ------ -- - ~-- --x P~ESEN-T: HON·. LEON RUCHELSMAN Motion Seq. #:1
The defendan:'t's have moved pursuant ~o CPLR- §3211 seeking to ·
dismiss the. complaint for the failure to allege any causes of
-i;iction. The plain.tiff f-il.ed an arn~nded c.9rnpl.aint, however, the·
defendants still seek the di.srriissal of the cla.ims contained
w_i thin the arnended comp,laint. Papers we.re subrni tted l:)y the
_parties- and after- reviewing ,;ill the arguments this ·-court now
.makes the following determinatio n.
According. to the ve-rifi:e.d am~nded, complaint the. pla:intiff is
a 33. 33% 0wrier of :nominal de-fertdant SkyJ.ine Builciers Group. Li..C.
The: plaintiff alieges, essentially( that the defendants ·excluded
the d~fendant from deci·sion making ano f·rom th_e financia_l operations of the company. .Moreover, the plaintiff. alleges he
was denied his due c6mpensat.:l.on at the corn.pany and that the·.
de'f.e.ndants. diverted Gompan_y fµnds. for .:tl.1:eir _own pe:rsoanl
hE!ne.fits.. The verifj_ed amended_ complaint asserts causes of
action fo-r. breach o-f . contr.a-ct~ brea:ch of fiducia:i;:-y duty, unjust
1 of 6 [* 1] FILED: KINGS COUNTY CLERK 10/08/2024 01:03 PM INDEX NO. 500271/2024 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 10/08/2024
enrichment, an acc:ount{:ng, misappropria tion·apd a tjeolaratc:iry judgeme;nt. The defendants ha,ve moved seeking to dismiss the
atnended complaint on the grounds it fails to aliege any ·oause ·of
·a,ction.~
Conclusiorts of Law.
It is well settled that upon a motion to, dis1:nJss t:he court must determine, accepting the allegations of the complaint as
true, whether· the party can succeed upon at;iy reasonable view o·f those facts (Perez v. ~ & M Transportatio n Corporation, 21.9 AD3d
14'49, 196 NYS3d 145. [2d Dept., 2023l). Furthefr.·, all the
·.allegations in the complaint are de.em:ed; true ~nd all rea.sopable:
inferences may be cirawr1 in favor of the plaintiff (Archival Tnc __ ,
v. 177 Realty Corp., 220 AD3d 90·9., 198 NYS2.d 567 [2d Dept.,
2.023]). Whether the complaint will later survive a motion for
summary judgment,: or whether the plaintiff will ultimately he
al::;ile to· prove its claims., of cours.e:.,· pl.ays no p?-rt in the•
determi;nat±.o n of .a pre~ct.:Lscove:r y GP.LR §321l motion to dismiss
{see, Lam T •. Weiss, 219 AD3d 713, 195 NY.S3d 4.BH [2d Dept.,
2.023l) ..
It i,s further well settled that to succeed upon a claim of
bre.ach o·f contract the plaintiff must ,establlsh the existence? of
a contract, the plaintiff's: pe;i:-formanc~, the· defe:m.dant '.s brea.ch
and resu1 ting damag.es (Harris v. Seward Park Housing Corp., 7 9
2 of 6 [* 2] FILED: KINGS COUNTY CLERK 10/08/2024 01:03 PM INDEX NO. 500271/2024 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 10/08/2024
A,b3d ·4'2.5; 913 NYS.2d 161 [ pt Dept .. ,· 2010]). . The· first and
seventh causes of action of the ve-rified amended c:::o:rn.;plaint
contain the exact same language. Furt-he:r, as expl~ined in
.Gianelli v. RE/MAX of ..New Yo-rk, 14"4 AD3d :861, 41 NYS3d 273 [2d
Dept., 2016], . "a breach Of cont.tact cause of action fails as a. .
·matter -of law- in the ab_s·en:ce q,f any showing that a specific
provis.ion of the .contract wa·$· .bre·?.-ched" {·id) . The t.wo c:ai1$es of
action conta.in generalizatio ns conc.erning which provisions were
·breach·ed and even which documents we:re b:i::eacl)ed. Thus, the
verified amenoed. qompl.aint £.ails tq adequ_ately allege a:ny breach
of contract at all. Thus, th·e motion se·eking to dismiss the
first and s·eventh causes. of -a·ction is gra.n:ted w-ithoµt prej1,.1dit:.e to properly re-plead and allege cogent ca:uses of action.
·The second cause of action alleges. a breach o.:e: f iduc:.ia:r:y
duty. It is wel.l ~ettled th_at when a cl.a.im for b:reach of a
fiduciary o.uty is merely duplicative of a breach o-f contract claim where- they are b.ased o_n the. s-c;1.me t:a.cts anq :See-k the- same
damage then the .breach of fiduciary claim cannot stand (Pacelia
v. Town of ·Newburgh Volunteer Ambulance Corps. Inc'., 164. AD3d
809, 93· NYS.3d 246 [2d .Dept. r -2018]). In this .case the caµse qf
action alle.ging any breach of a ficiuciary duty may be idehtical
to the g_eneial breach of c·ontra.ct claimr namely that the
defendants failed to honor the terms of the oper,ating a:greeme_nt
entered into between the pa·rties ~ Consequently, . the motion
.3
3 of 6 [* 3] FILED: KINGS COUNTY CLERK 10/08/2024 01:03 PM INDEX NO. 500271/2024 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 10/08/2024
seeking to dismiss the second cause of action is denied with
leave to renew following the submission of the new breach of
contract claim.
The third cause of action is for unjust enrichment. It is
well settled that a claim of unjust enrichment is riot available
when it duplicates or replaces a conventional contract or tort
claim (see, Cotsello v. Verizon New York Inc.,, 18 NY3d 777, 944
NYS2d 732 [2012]) . As the court noted "unjust enrichment is not
a catchall cause of action to be used when others fail" (id).
Since the plaintiff may plead a breach of contract claim the
unjust enrichment claim may be duplicitive, Consequently, the
motion seeking to dismiss the third cause of action is denied
with leave to renew following the submission of the new breach of
Next, it is well settled that "the right to an accounting
is premis:ed upon the existen:ce of a confidential or fiduciary
relationship and a breach of the duty imposed by that
relationship respecting property in which the party seeking the
accounting has an interest" ( ~ , Palazzo v. Palazzo, 121 AD2d
261, 503 NYS2d 381 [2d Dept., 198 6J) . In this case there is
clearly a confidential relationShip. The defenda:qt asserts this
cause of action is moot since all the documents have already been
submitted; However, there are questions whether indeed all such
information has been provided. Consequently, the motion seeking
4 of 6 [* 4] FILED: KINGS COUNTY CLERK 10/08/2024 01:03 PM INDEX NO. 500271/2024 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 10/08/2024
to dismiss this cause of action is denied.
The fifth count seeks a declaratory judgement. It is well
settled that "a motion to dismiss the complaint in an action for
a declaratory judgment "p.:resents for consideration only the issue
of whether a cause of action for declaratory relief is set forth,
Free access — add to your briefcase to read the full text and ask questions with AI
Salvatoriello v Coady 2024 NY Slip Op 33595(U) October 8, 2024 Supreme Court, Kings County Docket Number: Index No. 500271/2024 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 10/08/2024 01:03 PM INDEX NO. 500271/2024 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 10/08/2024
SUPREME COURT. OF THE STATE OF NEW YORK COUNTY QF KINGS :. CIVIL TERM: COMMERCIAL 8 -- .. _· -·· ,-_-. ---------· ___ ,· ---------- ·---· ---· ·x_ VINCENT ~AtVATORIELLO, Ph.D., Plaintiff,. Decision and order
Index N◊- soo211/ib24 GREGORY COADY and NICHOLAS COADY, 'Defendant ·and
:S-I{YLINE: BUI~DERS -G~OUf LLC, Nomina.-1 Def end.ant, October :B, 2-0-:24 ----- ----------- ---- ------ -- - ~-- --x P~ESEN-T: HON·. LEON RUCHELSMAN Motion Seq. #:1
The defendan:'t's have moved pursuant ~o CPLR- §3211 seeking to ·
dismiss the. complaint for the failure to allege any causes of
-i;iction. The plain.tiff f-il.ed an arn~nded c.9rnpl.aint, however, the·
defendants still seek the di.srriissal of the cla.ims contained
w_i thin the arnended comp,laint. Papers we.re subrni tted l:)y the
_parties- and after- reviewing ,;ill the arguments this ·-court now
.makes the following determinatio n.
According. to the ve-rifi:e.d am~nded, complaint the. pla:intiff is
a 33. 33% 0wrier of :nominal de-fertdant SkyJ.ine Builciers Group. Li..C.
The: plaintiff alieges, essentially( that the defendants ·excluded
the d~fendant from deci·sion making ano f·rom th_e financia_l operations of the company. .Moreover, the plaintiff. alleges he
was denied his due c6mpensat.:l.on at the corn.pany and that the·.
de'f.e.ndants. diverted Gompan_y fµnds. for .:tl.1:eir _own pe:rsoanl
hE!ne.fits.. The verifj_ed amended_ complaint asserts causes of
action fo-r. breach o-f . contr.a-ct~ brea:ch of fiducia:i;:-y duty, unjust
1 of 6 [* 1] FILED: KINGS COUNTY CLERK 10/08/2024 01:03 PM INDEX NO. 500271/2024 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 10/08/2024
enrichment, an acc:ount{:ng, misappropria tion·apd a tjeolaratc:iry judgeme;nt. The defendants ha,ve moved seeking to dismiss the
atnended complaint on the grounds it fails to aliege any ·oause ·of
·a,ction.~
Conclusiorts of Law.
It is well settled that upon a motion to, dis1:nJss t:he court must determine, accepting the allegations of the complaint as
true, whether· the party can succeed upon at;iy reasonable view o·f those facts (Perez v. ~ & M Transportatio n Corporation, 21.9 AD3d
14'49, 196 NYS3d 145. [2d Dept., 2023l). Furthefr.·, all the
·.allegations in the complaint are de.em:ed; true ~nd all rea.sopable:
inferences may be cirawr1 in favor of the plaintiff (Archival Tnc __ ,
v. 177 Realty Corp., 220 AD3d 90·9., 198 NYS2.d 567 [2d Dept.,
2.023]). Whether the complaint will later survive a motion for
summary judgment,: or whether the plaintiff will ultimately he
al::;ile to· prove its claims., of cours.e:.,· pl.ays no p?-rt in the•
determi;nat±.o n of .a pre~ct.:Lscove:r y GP.LR §321l motion to dismiss
{see, Lam T •. Weiss, 219 AD3d 713, 195 NY.S3d 4.BH [2d Dept.,
2.023l) ..
It i,s further well settled that to succeed upon a claim of
bre.ach o·f contract the plaintiff must ,establlsh the existence? of
a contract, the plaintiff's: pe;i:-formanc~, the· defe:m.dant '.s brea.ch
and resu1 ting damag.es (Harris v. Seward Park Housing Corp., 7 9
2 of 6 [* 2] FILED: KINGS COUNTY CLERK 10/08/2024 01:03 PM INDEX NO. 500271/2024 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 10/08/2024
A,b3d ·4'2.5; 913 NYS.2d 161 [ pt Dept .. ,· 2010]). . The· first and
seventh causes of action of the ve-rified amended c:::o:rn.;plaint
contain the exact same language. Furt-he:r, as expl~ined in
.Gianelli v. RE/MAX of ..New Yo-rk, 14"4 AD3d :861, 41 NYS3d 273 [2d
Dept., 2016], . "a breach Of cont.tact cause of action fails as a. .
·matter -of law- in the ab_s·en:ce q,f any showing that a specific
provis.ion of the .contract wa·$· .bre·?.-ched" {·id) . The t.wo c:ai1$es of
action conta.in generalizatio ns conc.erning which provisions were
·breach·ed and even which documents we:re b:i::eacl)ed. Thus, the
verified amenoed. qompl.aint £.ails tq adequ_ately allege a:ny breach
of contract at all. Thus, th·e motion se·eking to dismiss the
first and s·eventh causes. of -a·ction is gra.n:ted w-ithoµt prej1,.1dit:.e to properly re-plead and allege cogent ca:uses of action.
·The second cause of action alleges. a breach o.:e: f iduc:.ia:r:y
duty. It is wel.l ~ettled th_at when a cl.a.im for b:reach of a
fiduciary o.uty is merely duplicative of a breach o-f contract claim where- they are b.ased o_n the. s-c;1.me t:a.cts anq :See-k the- same
damage then the .breach of fiduciary claim cannot stand (Pacelia
v. Town of ·Newburgh Volunteer Ambulance Corps. Inc'., 164. AD3d
809, 93· NYS.3d 246 [2d .Dept. r -2018]). In this .case the caµse qf
action alle.ging any breach of a ficiuciary duty may be idehtical
to the g_eneial breach of c·ontra.ct claimr namely that the
defendants failed to honor the terms of the oper,ating a:greeme_nt
entered into between the pa·rties ~ Consequently, . the motion
.3
3 of 6 [* 3] FILED: KINGS COUNTY CLERK 10/08/2024 01:03 PM INDEX NO. 500271/2024 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 10/08/2024
seeking to dismiss the second cause of action is denied with
leave to renew following the submission of the new breach of
contract claim.
The third cause of action is for unjust enrichment. It is
well settled that a claim of unjust enrichment is riot available
when it duplicates or replaces a conventional contract or tort
claim (see, Cotsello v. Verizon New York Inc.,, 18 NY3d 777, 944
NYS2d 732 [2012]) . As the court noted "unjust enrichment is not
a catchall cause of action to be used when others fail" (id).
Since the plaintiff may plead a breach of contract claim the
unjust enrichment claim may be duplicitive, Consequently, the
motion seeking to dismiss the third cause of action is denied
with leave to renew following the submission of the new breach of
Next, it is well settled that "the right to an accounting
is premis:ed upon the existen:ce of a confidential or fiduciary
relationship and a breach of the duty imposed by that
relationship respecting property in which the party seeking the
accounting has an interest" ( ~ , Palazzo v. Palazzo, 121 AD2d
261, 503 NYS2d 381 [2d Dept., 198 6J) . In this case there is
clearly a confidential relationShip. The defenda:qt asserts this
cause of action is moot since all the documents have already been
submitted; However, there are questions whether indeed all such
information has been provided. Consequently, the motion seeking
4 of 6 [* 4] FILED: KINGS COUNTY CLERK 10/08/2024 01:03 PM INDEX NO. 500271/2024 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 10/08/2024
to dismiss this cause of action is denied.
The fifth count seeks a declaratory judgement. It is well
settled that "a motion to dismiss the complaint in an action for
a declaratory judgment "p.:resents for consideration only the issue
of whether a cause of action for declaratory relief is set forth,
not the question of whether the plaintiff is entitled to a
favorable declaration;"' (DiGiorqio v. 1109-1113 Man·hattan Avenue
Partners LLC, 102 AD3d 725, 958 NYS2d 417 [2d Dept., 2013]). The
basis for this cause of action is the assertion the plaintiff is
a 33.33% owner of the company. However, that assertion is not
disputed at all. There is a dispute whether the plaintiff was
permitted to be terminated as an at-will employee. Thus, while
the percentage of ownership is not in dispute there are questions
whether the plaintiff's termination was proper. Despite the
inartful drafting of the amended complaint this is an issue which
cannot be summarily decided on a motion to dismiss. Therefore,
the motion seeking to dismiss the fifth cause of action is
denied.
The sixth cause of action merely alleges the defendants
have forfeited the share .of funds that was rightly the
plaintiff's. That does not allege any cause of action and
cc:.msequently thE3 motion seeking the sixth caµse o.f action is
granted.
Lastly, the wher1=-fore claµse which see.ks attorney's f ee.:i ls
5 of 6 [* 5] FILED: KINGS COUNTY CLERK 10/08/2024 01:03 PM INDEX NO. 500271/2024 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 10/08/2024
stricken. Th ere is no ment ion of such fees in t he complaint.
So o rder ed.
EN TER:
DATED: October 8 , 2024 Brooklyn N.Y. y Hon. Leon Ruchelsman JSC
6 of 6 [* 6]