Turner v. New York Rosbruch/Harnik, Inc.

84 F. Supp. 3d 161, 2015 U.S. Dist. LEXIS 17035, 2015 WL 500493
CourtDistrict Court, E.D. New York
DecidedFebruary 4, 2015
DocketNo. 12-cv-6256 (WFK)(RER)
StatusPublished
Cited by8 cases

This text of 84 F. Supp. 3d 161 (Turner v. New York Rosbruch/Harnik, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Turner v. New York Rosbruch/Harnik, Inc., 84 F. Supp. 3d 161, 2015 U.S. Dist. LEXIS 17035, 2015 WL 500493 (E.D.N.Y. 2015).

Opinion

DECISION & ORDER

WILLIAM F. KUNTZ II, District Judge:

By complaint filed December 20, 2012, Plaintiffs Todd and Erin Turner (together, “Plaintiffs”), allege that Defendants New York Rosbruch/Harnik (d/b/a Strategies for Wealth) (hereinafter referréd to as “NYRH”) and Alvin Russell Lewis1 (collectively, “Defendants”), an employee of NYRH, committed fraud, breached their fiduciary duties, aided' and abetted fraud, and violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962, 1964. Plaintiffs specifically allege that Defendants entered into a corrupt agreement to use email and phone to misrepresent to Plaintiffs that certain of their investments would be used to fund short-term, high-interest loans to third parties when such loans were not being used for those purposes, which caused Plaintiffs to suffer severe financial hardship. Defendant NYRH moves to dismiss these claims pursuant to Rules 12(b)(6) and 9(b) of the Federal Rules of Civil Procedure for failure to state a civil RICO claim and failure to satisfy the pleading requirements. For the reasons discussed below, Defendant’s motion is GRANTED.

BACKGROUND

Plaintiffs Todd and Erin Turner, residents of New York at the time this action was filed, were introduced to Alvin Russell Lewis in December 2004 as a potential investment adviser. Compl. ¶¶ 2-3, 17.-At the time, Lewis was employed as a financial advisor by Defendant NYRH, a New York Corporation with a principal place of business at 140 Broadway, New York, NY. Id. ¶¶ 6-7, 9. After several meetings at NYRH’s office, Lewis was retained to financially advise Plaintiffs. Compl. ¶ 18.

During the course of the parties’ relationship, Lewis sold life insurance policies to Plaintiffs, provided legal advice related to a condominium, and “provided general financial and tax planning advice, as well as investment opportunities, including but not limited to the purchase of stocks and the funding of privately placed loans.” Id. ¶¶ 21-22. Additionally, Lewis offered Plaintiffs opportunities to fund short-term high-interest loans to third parties. Id. ¶ 27. Over a course of three years, Plaintiffs ultimately funded eleven such loans. Id. ¶¶ 27-28, 48.

According to Plaintiffs, Lewis provided advice to Plaintiffs both via constant email contact and in frequent meetings at Lewis’s office at NYRH. Id. ¶¶ 23, 25. During [165]*165these meetings, NYRH employees, including receptionists, saw and in some cases greeted Plaintiffs. Id. ¶ 24. Furthermore, Lewis sent Plaintiffs e-mails primarily during business hours via his personal and corporate e-mail accounts. Id. ¶ 26.

By September 2011, Lewis began to default on the payments to Plaintiffs due under the notes for the loans'. Id. ¶ 32. During the following months, Plaintiffs allege that Lewis evaded their request for an explanation or to render payment. Id. ¶ 38. On November 3, 2011, Lewis committed suicide. Id. ¶34. At this time, Plaintiffs allege that they found themselves in severe financial hardship as they had lost $350,000. Id.. ¶¶ 35-36.

The Complaint further alleges that unfortunately for Plaintiffs, the loans presented by Lewis were for the most part non-existent. Id. ¶ 29. Although the notes for the loans were made to actual companies, the companies deny the existence of any loans and disclaim any claim for monies owed to Plaintiffs. Id. ¶¶ 30-31. When Plaintiffs questioned NYRH principal, Jerry Harnik, about the situation, Harnik informed Plaintiffs “that he is not aware of any connection between the promissory notes issued by Mr. A1 Lewis and [NYRH].” Id. ¶¶ 37-38. Plaintiffs ultimately contend that Harnik denied any responsibility on behalf of NYRH even though Plaintiffs were clients for eight years, Lewis worked for NYRH, and Plaintiffs and Lewis communicated at NYRH offices and over NYRH e-mail. Id. ¶ ¶ 38-39.

Plaintiffs assert four causes of action against Defendants. First, Plaintiffs assert a cause of action based on fraud. According to Plaintiffs, Lewis, as an employee of NYRH, misrepresented to them on numerous occasions that “their investments would be used to fund short term high interest loans to third parties.” Id. ¶ 48. As part of this misrepresentation, Lewis assured Plaintiffs that because the loans were made to other NYRH clients, the loans would be supervised and managed by NYRH, and that the loans did in fact exist and would be profitable. Id. ¶¶ 49-50. However, Plaintiffs allege that Lewis never intended to use Plaintiffs’ monies for the stated purposes, but “intended and did use the monies received from Plaintiffs for his personal benefit.” Id. ¶¶ 51-52. Because Plaintiffs had hired Lewis to provide “ ‘wealth strategies’ ” and had purchased legitimate life insurance from Lewis, Plaintiffs contend they justifiably relied on Lewis’s representations regarding the investments. Id. ¶ 53. Further, Plaintiffs contend they were damaged “in that they lost the money that they ‘invested’ with Lewis.” Id. ¶ 54. As an example, Plaintiffs highlight an investment opportunity Lewis presented to Plaintiffs on August 13, 2011 to loan The Steptoe Group $50,000. Id. ¶ 55. Plaintiffs decided to make the $50,000 investment to “reap the benefits of the high interest rate they were supposed to receive on their investment.” Id. ¶¶ 57, 59. Although Lewis provided Plaintiffs with a note representing that the money had been lent, The Steptoe Group denies receiving any money in connection with the loan. Id. ¶¶ 60-61. Plaintiffs claim that Lewis misrepresented this loan because he never intended to use the money to fund the loan. Id. ¶ 56.

Second, Plaintiffs assert a cause of action based on breach of fiduciary duty. Plaintiffs allege that because Defendants were hired to provide financial planning and advice, Defendants were under a duty •to act for and/or give advice that would benefit Plaintiffs, especially with respect to matters within the scope of the parties’ financial advisory relationship. Id. ¶¶ 64-65. Plaintiffs contend that Defendants [166]*166breached their fiduciary duty by providing detrimental advice, including advising Plaintiffs to invest in non-existent loans. Id. ¶¶ 70-71. Moreover, Plaintiffs contend that NYRH breached its fiduciary duties by failing to “adequately supervise the hiring and activities of their employees and/or agents.” Id. ¶ 72, According to Plaintiffs, NYRH owed Plaintiffs a duty to hire qualified and trustworthy individuals by conducting appropriate background investigations into potential employees, and supervise how their facilities, staff, and other company assets were being used. Id. ¶¶ 73-74. Plaintiffs contend that they invested with Defendants' based on NYRH’s reputation for professionalism, honesty, and integrity. Id. ¶ 76. Plaintiffs argue they suffered hundreds of thousands of dollars in damages because NYRH’s reputation was “clearly illusion-ary.” Id. ¶¶ 77-78.

Third, Plaintiffs assert a RICO cause of action.

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84 F. Supp. 3d 161, 2015 U.S. Dist. LEXIS 17035, 2015 WL 500493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-new-york-rosbruchharnik-inc-nyed-2015.