Stefatos v. Frezza

Appellate Division of the Supreme Court of New York

Stefatos v. Frezza

95 A.D.3d 787, 945 N.Y.S.2d 297

Appellate Division of the Supreme Court of the State of New York·Decided May 31, 2012·Published·Cited by 3 cases

Opinion

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered January 5, 2011, which granted defendants John Frezza, Fred-Doug Manager, LLC, Fred-Doug 117, LLC, Strategic Construction Corp., Strategic Construction, Ltd., Strategic Land Co., Inc. and Strategic Development Group, Inc.’s motion to dismiss the complaint except for the breach of contract cause of action as against Fred-Doug 117, LLC, unanimously affirmed, with costs.

Plaintiffs offer no substantive arguments in their opening brief regarding their declaratory judgment, accounting, conversion, malevolent indifference, appointment of a receiver, equitable lien, or constructive trust claims, and thus have abandoned those claims (see Edelman v Emigrant Bank Fine Art Fin., LLC, 89 AD3d 632, 632-633 [2011]; see also Cassidy v Highrise Hoisting & Scaffolding, Inc., 89 AD3d 510 [2011] [argument raised for the first time in reply not considered]).

The breach of contract claim that was dismissed is barred by the six-year statute of limitations (CPLR 213 [2]), since the last of the projects at issue was completed by 2003 and plaintiffs did not commence this action until 2010. The fraud and misrepresentation and breach of fiduciary duty claims are duplicative of the breach of contract claim (see Financial Structures Ltd. v [788] UBS AG, 77 AD3d 417, 419 [2010]; CMMF, LLC v J.P. Morgan Inv. Mgt. Inc., 78 AD3d 562, 564-565 [2010]).

We have considered plaintiffs’ remaining arguments and find them unavailing. Concur — Tom, J.B, Andrias, Saxe, Moskowitz and Acosta, JJ.

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Order, Supreme Court, New York County (Bernard J. Fried, J.), entered January 5, 2011, which granted defendants John Frezza, Fred-Doug Manager, LLC, Fred-Doug 117, LLC, Strategic Construction Corp., Strategic Construction, Ltd., Strategic Land Co., Inc. and Strategic Development Group, Inc.’s motion to dismiss the complaint except for the breach of contract cause of action as against Fred-Doug 117, LLC, unanimously affirmed, with costs.

Plaintiffs offer no substantive arguments in their opening brief regarding their declaratory judgment, accounting, conversion, malevolent indifference, appointment of a receiver, equitable lien, or constructive trust claims, and thus have abandoned those claims (see Edelman v Emigrant Bank Fine Art Fin., LLC, 89 AD3d 632, 632-633 [2011]; see also Cassidy v Highrise Hoisting & Scaffolding, Inc., 89 AD3d 510 [2011] [argument raised for the first time in reply not considered]).

The breach of contract claim that was dismissed is barred by the six-year statute of limitations (CPLR 213 [2]), since the last of the projects at issue was completed by 2003 and plaintiffs did not commence this action until 2010. The fraud and misrepresentation and breach of fiduciary duty claims are duplicative of the breach of contract claim (see Financial Structures Ltd. v [788] UBS AG, 77 AD3d 417, 419 [2010]; CMMF, LLC v J.P. Morgan Inv. Mgt. Inc., 78 AD3d 562, 564-565 [2010]).

We have considered plaintiffs’ remaining arguments and find them unavailing. Concur — Tom, J.B, Andrias, Saxe, Moskowitz and Acosta, JJ.

Stefatos v. Frezza, 95 A.D.3d 787, 945 N.Y.S.2d 297 (N.Y. Ct. App. 2012).

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