Salvatoriello v. Coady

2024 NY Slip Op 33595(U)

Opinion

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

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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

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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

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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 contract claim.

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

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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

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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

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