Volt Viewtech, Inc. v D'Aprice

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Volt Viewtech, Inc. v D'Aprice 2006 NY Slip Op 30681(U) January 9, 2006 Supreme Court, New York County Docket Number: 601653/2003 Judge: Richard B. Lowe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART Index Number : 601 65312003 VOLT VIEWTECH INC. & INDEX NO. vs D'APRICE, ANDREW MOTION DATE Sequence Number : 01 1 MOTION SEQ. NO. P0 0 R PERSONlASSI GN C 0 U NS EL MOTION CAL. NO. i n e Tollowing papers, numbered 1 to , were read on.this motion to/for PAPER6 NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... Answering Affldavlts - Exhlblts Replying Affldavlts I Cross-Motion: '-1 Yes Upon the foregolng papers, It I ordered that this motion s Dated: Check one: 1 I FINAL DISPOSITION Check if appropriate: n DO NOT POST NON-FINAL DISPOSITION I I REFERENCE [* 2] - against - ANI)KEW D APiCICE, I IAROIII BLOCK, ELMS Index No. 60 I653/03 BOCII INER a / k / a I,EIB GOLD a/k/a ISAAC TRAUB, ALAN DOMZER, JOSBI H C I O I ,TUNS, CiEOR(~1~ I-IEIIBERT, Y 1TZAC.K ITZKOW I I Z a/k/a Y ITZCHOK ITZOWITZ &/a ISSACI ITZKOWITS, m m w KOVACS, ELLEN MICHELE s J,EIBHAIID, MIKE LF:IRIIARI>,ABlIAl IAM MAIIKOWITZ a / k / a AVI MAIIKOWITZ dk/a ARRAHAM LEBOVICE, CARMINE PAMPALONE, ALBEI<T PULLINI, AMtNICO T ULI.IN1, EDWAKL) I LJLIJNI, MATTI IEW ROMAINE, PAUL SIGNORELLI, JOSELj SLAMFT a/k/a JOSEF SZAMET, DE:C1S I ON MARVIN SONTAG a/Wa MENDY SON I AG,CARL AND ORDER TEKMINE, CIHRISTOS TSAMASIIIO, TIIOMAS TSAMASIIIO, GEOICGE M . VANN, JR., MAX WBlSZ a/k/a AVROM MEY 1IR WEISZ, t3&1 I 1 1 LJMBTNG & LEATING, INC:., BAYIT PLIIMJ31NG A N D HEATING, INC., BAY RIDGE MECIJANICAL CXIRP., COl I EltLINI< PLUMBING AND HEATING, INC:., EQIJITY RESOURCES LI.,C:., FIlW ClH0IC.X PLUMBING, I(. FLUSH RITE SUPPLY, INC., N:, GEOlCGE BOMZER & SON, INC., I IUDSON FINANCIAL C;l<OLJP, M&S MECI IANJCAL CONIRAC ITORS,INC., METRO PLUMBING AND HEA I ING, PACE PLUMnlNG COIU ORATTON, I ULLINI WATER MAlN Sr. SEWER CONTRAC I OIIS, INC., RIGID 1)LUMRING & I IEATING, COIIP., SlJNSl HNE GLOBAI, CORP., TGLM PLUMBING CORP., and TOTAT, PLUMBING AND HEATING, INC., D cfcn clan ts . ............................................................................... X RICHAlW B. LOWE, 111, J.: Defendant Abraham Markowitz, a/Wa Avi Markowitz, nlWa Abraham I xbovice (Markowitz) brings this motion lo dismiss, pursuant to CPLR 3013 and 32 I 1 (a), the C:umplaint for, intcr alia, fia LId , LI11.;us t ciirichni en t, i 11 dcniri i fi cat ion , I? rcach of fi d LIc i ary ob1i gat ions, co m III crc i a 1 bri bcr-y, and injury to rcpulalioii. MarkowitL asserts, pursuant to CI LR 301 3, dismissal of thc C oinplaiilt h i - [* 3] insufficiency ofpleading. Markowitz also argues that, uiidcr CPLR 32 I I (a), disniissal is waimnted lor hilure to slate of cause of action bascd on docunicntary cvidence and the statutc ol limitations. Dcfcndant also iiiovcs, pursuant to CPLK 1 101 and I 102, foi-an ordcr dcclcriiiig hini a poor person and to fissigri counsel and other privilcgcs to him for thc duration of this litiplion. BACKGROUND Tlic gcncral background siirrouIidiiig this litigation is discusscd at length in thc court s decision daled July 14, 2005. Accordingly, only f x t s perlaining to Markowitz will be discussctl here. Tlic City of New York, Departiiiciit of hvironmental I rese~-vation (DEP), iniplemented a water coiiservatioii progr-aril callcd the Toilet Rebate Prograiii ( TRY) from 1993 to 1907. Tlic DEP, in oi-der to induce participation in the program, ofl cr-cd tiiiaiicial incentives in the form of rebates to building owners who rcplaced existing plumbing iixturcs such as toilets and showerlicads, Thc prcdcccssor to Volt Viewtech, hie. (Volt) cntcrcd into an agreement with tlic DEI to admini~tcr the TRP. As DEP s contractor, the plainliIfwas resporisiblc for processing [he rcbatc applications, conducting iiispcctioiis, coordinating collection, aiid authorizing and arranging for-pnynicnts o i [he rebates. Huilcling owticrs would submit an application and hirc a private company to rcmove x i d replace pluiiibiiig iixturcs. Thc private coiiipaiiics would, once completed, submit fori-ris to the plaintiff as proof of cumpletion. Volt would inspect aiid would autliorize payr-neiils. Due to the improper issiiaiice of rebates and kickbacks, Volt informed the City of Ncw York of the thefts and an investigation cnsued. Volt was required to reimburse the City of New York for thc fraud~dciit payiiicnts. Eventual criniinal chargcs were brought on bclialf of the DGP against 2 [* 4] individuals alleged to havc conducted wrongdoing. Otic of the individuals concertled was Markowitz. Markowitz, a psr-tncr in aplumbing conipany at the time the underlying litigation is premised upon, was one ofthe individuals convicted of such wrongdoing by voluntary plea. In his allocutioii 111the LJnited States District Court on December 2,2002, lie stnlcd that lie dcfi-audcdthe T R P in 1996 and I907 by fslscly reporting that toilcts wcrc fully installed in Imildings his company was working oii. Furtlicr-, lie sulmiittcd tlic fbllowing stntcmciit: DEl through Volt Viewtech, would givc riic a clicck for-llic rcbatc amount which I would deposit tlic check in my cniiipaiiy Ixmk account and witlidraw cash to use to pay kickbacks to the senior Volt Vicwtcch employee. 1 0 d o this I used m y A TM card and checks that were written to niy name. These iinancial transactions wcrc iritcndcd to disguisc the sourcc of tlic iiioiicy and to promote thc scheme .... (Sw Mail Ail-., Ex. 13 at 16-21), Markowitz hrtlicr statcd that hc: also assisted another person who had his own pluiiibiiig company by serving as a ~ ~ i i d d l ~ r n a n bctwccn liim arid Volt Vicwtcch employee. Wlicii I was a Tiiiddlcrriari I reccivcd approximately $15 for each toilet that was falsely reported as having bccn installcd. 1 did not report i tliosc cash payments on riiy 1997 tax return. As ; resull, J uridcr reported m y income for that ycar-. T kncw that the inconic should have hccn rcportcd and hiled to do so. (Td.). The court accepted liis plea arid scntcnccd Markowitz to 33 months in prison lor corispiracy to commit Fraud, fraud, conspiracy lo corninit iiioney laundering, and tax evasion, without downward dcparhirc (id., Ex. 1, 14). Markowitz was also sentenced to pay restitution i n thc amount ol $900,000 (id.).Markowitz has since paid $80,000 in reslitutioix@ Markowitz Aff.), and contmucs to pay rcstitutiori tlirougli his currcnt employment. Volt was rchiscd paymcnt by tllc DEP duc to the nial-administration of tlic program. I hus, 3 [* 5] Volt, by Complaint on May 28, 2003, Ixitigs action agaiiist all the defendants, arid Markowitz individually, for fraud (first causc of action), Liri.just ctirichment (second cause of action), ii~dcniiiificatioii(third caiise of action), induccnieiit oi hreach of fiduciary obligation (fourth cause of action), commercial bribcry (fifth cause of action), arid itij iiry to reputation, lost business, and loss of value to business (sixth cause of action). DISCUSSTON Markowik contends that thc Coiiiplaint is deficient undcr CPLR 30 13 because the plaiiitiff has failcd to provide notice of tlic transactions and occurrences thal Volt intends to provc. Thc dcfcridniit also moves to dismiss pursuant to CI LII 32 I I (a) all claims alleged against liiiii for failure to state ;i causc of nctioii bascd on docurncntary evidence and under the statute of limitations. I I C sccks to be declarcd a poor-pel-son and have the court by court order assign an attorney pr-ovidcd by Ncw Yoi-k to represent his intcrests in the pending litigation pursuant to CI LII I I O I and 1 102. 1. Po0 1- Pccrson i p p Iicn iou t I hc dcfciidaiit moves iinder CPLR I I O 1 aiid 1102 for an ordcr declaring hiin lo be a poor pcrson and ordering the City of Ncw York to provide an attoriicy to represent him in this action. As wcll, the clekendant requests stenographic noles and waiver of fees. The plainiiir opposes the or request bccausc dekiidant h a s cither legal ac~iineii is already rcprcscntcd by counsel, that Markowitz has iiiiaricial capacity bccausc lic previously paid $80,000 in restitution, provided for his own counscl in tlic criminal action, and during oral argument, noted that counscl should not be providcd by tlic City of New York at the cxpcnse of the taxpayers. In rcspoiisc, the defendant argues that he only makcs $198.00 n week, has no othcr income or propcrty, and usccl whatever 4 [* 6] iiioiiey he had for counsel jii the criminal action. Markowitz also asserts that thc $80,000 provided in restitution was given by his father, family, and people i n thc conirnuriity. Finally, the dcfcndnnt notes that lie has no legal acunien and that his inotioii to dismiss was made thi.ough thc aid of a former lawyer in prison and that thc arguiiiciits articulated were made throiigh his own ability. Undcr CPLR 1 101, a court may grant an application to aiiy person lo proceed as a poor pcrsoii. l he nioving party shall filc an affidavit setling forth tlic amount and soLirccs of h i s or hcr iriconic and listing his or her property with its valuc; that lie or slic i s unable to pay the costs, fccs and cxpeiiscs necessary to prosecute or defend the action , , , the nature ofthc nctioii; [aiid] sui iicient facts so that thc merit o f the contentions can be ascertained (id.).Granting the poor person application cnubles the court lo grant privilegcs undcr C P L R 1 102, including tlic assigiiiiicnt of mi attoiiiey and free stenographic transcripts. I n addition, the adjudgcd poor pcrsoii shall iiot be liable for the payment of any costs or fccs unlcss a rccovcry hyjudgrnciit or by scttlemeiit is had in his favor (id.). hi deteriiiining whctlicr to grant or dciiy n poor pcrsoii application uiider CPLR 1101, which is discretionary (,see Snzilh v S milh, 2 NY2d 120 [ 1956]), the court exaillilies the pal-ty s overall fiiiancial sihiatioii. Here, the defcndanl argues that he does iiot have the h i d s and is unablc to obtain tlic fiiiids 11ceded to pay for an attoimy or for court fees. Markowitz alleges that Iic makes $198.00 weekly from his place of employment at Kcttcr Quality Judaica aiid owns 110 propcrty other tlian personal wear-ing apparel. Evcn though lie has paid over $80,000 in rcstitutiltion, Mal-kowitz argues that the moneys paid were given to him through friends and family, and that lie iio longer lias any funcis to hire an attorney. In addition, the defendant notes that tic is 5 [* 7] obligated l o pay 25 X of his caiiiirigs to ;i half-way house and 25%) to the US Attorncy to cover his scntclice ol restitut;.oii. Accordingly, of [he estimated $200.00 Markowitz earns a weck, thc defendant only retains about. $100.00 for personal use and docs not. have the wlicrcwithal to rctairi an at.torney. 1 Icrc, there is a lack oi evidence to support ttie dcfcndant s assert.iori of ai lcgcd iwligency. While the court cntcrtains thc clcfcndant s statenicnt that the $80,000 paid i n I-cstitulion is liroiii fi-icnds and fiiriiily, t h e is 110 cvidcncc, clocumentary or otherwise, to fiirtticr clcfcndant s stalemcnt. In addit.ion, the defendant has not spcciiied how hc cui-rciitly makes iise of thc moneys received from his weekly earnings. First, he has not providcd evidence as to the amount he makes at his plncc of employnicnt. Sccondly, thc dcfeiidant has not provided collaborating slipport rcgarding the iisc of his income for restitution and the half-way house Even if the court werc satisficd with Markowitz s s1:ilement regarding the iisc of 50% of his earnings, the defcndsiit has not providcd any information as to how ttie I-eniaining atuouiit is being iitilizcd. Finally, Markowitz has hiled to providc reasonable documciitation as to his bank accounts (which hc used to perpetuatc the h u d ) as well as tax retiinis to show indigence. As ~11~11, the court dcnics his poor person application. Similarly, the court dciiies thc dekndant s application for appointment of cou~iscl .underCl Lli 1 102. As lhe Court of Appeals in h i Kc? S t n i l c ~ y noted in civil cmes, therc is Iio lias absolutc right to assigncd counsel; whether in a particular case counsel shall bc assigned lies instcad in the discretion o l t h e court (36 NY2d 433, 438 [ 19751). During oral argument, the dcfcndanl insisted that lic had discussions with the Corporation Couiiscl oi New York City and that he was told that the City would provic-lc legal counscl to him as long as this court assigned G [* 8] poor person status to Markowitz. IHowcver, when tlic court prcsscd defknckint for an affidavit 11 or othcr cvidcuce to cvideiice thesc conimunications and even gavc the defendant the oppor-hini ty to provide such documents, iioric were forthcoming. In addition, his application for poor person stnhis is silent as to the allcgcd discourse bctwcen liiriiself and the City. The court will not assign counsel licrc. The application for appoiritiiient of counscl pursuant to CPLR 1 I02 is denied. IT. A ccc~plribl I- leadin,y R equircm et?I u n d w (71 - LH 3 013 e The defcndaiit strenuously argues that bccausc Volt f:ii Is to provide statcincnts sufficiciitly pal-ticuhi- to give tlic court arid partics noticc of the transactions, occt~rrc~~ccs,series of or iransactioiis or occurrciices, intended to be proved and tlie material clciiienis of cacli cause of action or defense (CPIX 3013), Markowitz iiioves to dismiss the Complaint in its entircty as a deiicicnt pleading. I hc court clisagrccs. fhcpritnary function ofpleadiiigs is to adquutely advise the adverse party of the pleader s claim and its clcincnts (l)cyw v %c.c..h.crzdo~f H7 ot~?l,~ 22 AD2d 647, 647 [ 1st Dcpt 19641, citing Corp., Folcy 1) /I Agostim, 2 I AD2d 60 [ 1st Uept. 19641). Generally speaking, [p]lcadings should not bc tlie disrnissed . . . ~inlcss allegations thcrcin are not .su[/kirnt/y particular to apprise the court and partjcs of thc suL3ject matter of the controversy (id. [cinpl~asis added], quotirig 3 Wcins~cin-Korii-Millcr, Y Civ l rac, pat. 30 13.03). N Here, thc courl finds that t1ic pleadings arc suflicient and adcquale to apprisc thc court arid the partics of tlie si]ti-jcct rnatler o l h e controversy. Volt has sufficiently articulatcd that it seeks to recover for the alleged fraud corniiiitted by the defendant as well BS Lor loss of reputation and other iiijurics, bnscd upon the allcgcd h c t that the defendant iiled false reports in order to rcccive I-ebate funds, Further, becausc this is a niotion to disriiiss, the court inust look to the substar~ce rather than 7 [* 9] to the form of tlic C oinplaint (b ol~y, AD2d at 64). I hc court is solely directed to the inqllil-y 21 of whctlicr- or not the pleading, considered as a wliolc, fails to state a causc of action (id). Rccnuse tlie substance of plaintiff s complaint sccks to recover against the dcfciidaiit for fraud and for the othci- c;tiIses of actions pursuant to the alleged fraud coiiiinitted by him, as wcll as has provided adequatc riotice to Markowitz of tlic pleader's claims, thcrc is 110 basis to dismiss the cornplaint for wliat hlarkowitz argues as iiiadequacies of pleading. Thc court denies Mal-kowitz s rnotion to dismiss pursuant lo CI LR 3013 for failure to 1 rovi de no ti ce ;i i nsu ffi ci en cy o 1 th c cviiip lain t . rid I 111. Of./ictio,l I : ~ ~ ~ : I L ~ ~ , ~ ( ~ ~ I In a rnotion to disrriiss pursuant to CPLR 32 I 1 (a), tlic court takes the fiicts as allcgcd in the l Complaint as true a ~ i t accords the beiielit of eveiy possible favorable inference to the tioil-iiiovaiit (sce fiovcllo 1 Ot.c!/irzoK e d t y Co., k., 40 NY2d 633, 634 [1976]). The court addresses c d i of tlic pl ai 1 ti ff s claims accord i ngl y. I 1 I. Fraud The clefendant rimvcs to dismiss tlic first cause of action for fraud undcr CPLR 321 1 (a) 101failure to slate a causc of action against Markowitz. l hedefendant argues that, undcr CPT,R 301 6, the plaintiff has failed to detail the wrongs against Iiim to allege fraud. Furdliermore, Markowitz argues that the docun-ientary evidence supports his motioii to dismiss and that it was Volt s own negligence that caused Volt s problems. Finally, the dcfciidant argues that not only has tlie plaintiff I The deferidatit argucs in c a d i causc oraclion that thc plaintiff fails to give sufficienl riotice o f t h c Volt s causcs of action as rcqtiii-cd under CPLK 30 13. Hecause the court has assessed the transaclioiis ~indci-lying defendant s arguniciit iiili-a and I i x clcnicd the motion to disniiss pursunnl to CPLR 301 3, the court will not 1-cvicw thc samc arguincnt for each C R L I S Col iictioii individually. [* 10] failed to state a c a ~ i s c action, but tlial the statiitc of liinitations bar tlic plaiiitiff li-om bringing a of claiin of fraud. J n order to asscrt 1c ;i valid claim for co~niiio~i fraud, the proponent must allege law reprcscntation ol a matcrial i nct, falsity, knowledge, intent to dcccivc, reliance arid damages, wi tli the requisite particularity piiisuant to ClPl ,R 30 1Ci(t,) ( C m i g h v C lzicqo Ti.ih~i/7c-Ne~~ ~~ I orkiV~ws Syrdic.alc, 204 AD2d 233, 234 1.1 st nept 19941; Barik hmi Ili.u.cr Ch.v DTvori MI., 163 AD2d 26, 3 1-32 [ l s t Dept 199Oj). Coaclusory allcgations or mcrc suspicion 01h i i d arc wholly insufficient (BcmliL P U N T/.i,rstCo., 163 AD2d at 32, citing GIn I~ nm 1 v Cufli, I11 AD2d 744 [2d Dcpt 19851). I-Iowcvcr, a cause of action for coininon law fraud r-ccpir-csonly that the misconduct coiiiplaiiied of bc sct forth in suflicient detail to clearly inform a [dcfcndant] with respect to ttic iiicidenls complaincd of and is not to be intcip-cted so strictly as to prcvent an otherwise valid causc v 23 of action (Bt~-mtein k clso & Ck., 1 AD2d 3 14, 320 [ 1st Dept IC)97][intcnial quotations omitted]). W hcrc tlic facts were peculiarly wilhin the knowledge of the parly against whom the [fi-aud] is being asserted (id., quoling J w ~ Cbnlr. Cuip. v N e w Yor-k C i[-yn,.. 22 NY2d 187, d Azillz,, 194 I_ I968]), the misconduct coliiplaiiicd of only needs to be sel forth in sufficient dctail to apprise defendants of the allcgcd wrongs. Here, it is plainly obviuus that the facts wci-e peculiarly within the knowledge ol thc party against whom tlie [fraud] is beiiig asserled (id.).Thcr-cis 110 dispute that the deferidant knew of tlic fraud; Markowitz, himself pcrpctuatcd the ii-aud and voluntarily pled giiilty to the underlying facts sun-ouiiding this litigation. Whilc thcr-c iiiay a question of tlie specific dates of the fraud, that docs not cliange the fact that tlic defeiidant had knowledge of the fraud and liinisclf was a party in the perpctuatioii tlicreof. Accordingly, t h e coiiiplainl alleges suffkiciit dctail that cleai-ly informed 9 [* 11] Mnrkowitz of the fraud complained of, and the motion to dismiss on this Oasis is clcnied. The defct~lant argues that documcntary evidence refiitcs the allegation of fraud, arguing next that it was plaintiff s own iiegligcnce that caused thc h u d and iiot d c f d a i i t s I-i-audulentactions. The delendant wcrs t h t the contractual agreemciits entered into for the rebate chccks wcre between the building owners and Volt, iiot bctween Volt and thc plumbers. Markowitz asserts that the building owiicrs privately hired the d c h d a n t and, accordingly, could not havc niade inisrepl-csentatioiis to the plaintiff since it had no legal duty to Volt. l hc del endant argues that, if anything, Iic is only liablc to the U E P siiicc the D.EP issued thc rebate checks and not Volt. flic coliI-t (1 is agrccs , IHcrc, the plaintiff allcges that the plumber, pi-ior to Volt approving rebate payinent, mist submit f o r m to Volt, including an invoice for the work, proofthat the old loilcts had t m n pnperly disposed of, and a list of the specific toilets that wcre replaced. Tlio~~gli contractual agrccmcrits the entered into wcre between the huilding owiiers and Volt, nonclhelcss Volt relied upon documents submittccl by the various plumbing coiiipanics and individuals, including Markowitz, in ordcr to base its approval and paytilent ofrebatcs. I his nllcged misreprescntatiolI~ti~ii Volt may coiistihite fraud, tu and, accordingly, the documentary evidciice does not r d u k the allcgation of h i d , but, instead, niay actually furtlier plaintif fs argument of fraud. IIere, the documentary evidcnce Markowitz bases his defense on docs iiot coiiclusively establish a defcnse to thc asserted claims as a iiiatter ol law (/,eo// 11 Mnriincz, X4 NY2d 83, 88 [ 1994]), and, a s such, the d c h d a n t s motion to dismiss on doc u in ent ary cvi clenc c is d c I i i ed . Finally, the dcfcndant argues that the stahite of hinitations has run a d , as such, the cause 01 action for fraud should be dismissed, arguing that bccause the plaintilf discovercd the wroiigdoiiig [* 12] ofits cniployecs in J i m 1997 and brought this Complaint on May28,2003, the statute oflimitations that has n i n . The I~l;iintil~-.argues the statute of Iiniitations did not r-tiii becausc under CPI,R 21 3-13, the statute of limitations period was extcnded to victims o f n crinic. The court agrees with Volt. While an action for li-aud gcner-ally has a statute of liiiiitatioris period o f six years or two years from tlic time tliat the plaiiitilT discovered the fraud, or could with rcasoiiable diligeiice liavc discovcrccl it (,see CPLR 2 13[8]), CPJ ,R2 13-b allows the victini ofn crime to pursue otherwise time- barrcd claims by ad.justing tlic statiite of limitations period to seven yeai-s against one convicted of a crime which is the subject o [such action, for an iiijiiIy or loss resulting tlicrcfi-om . . . of the date of the crime or ten ycars if convicted of a specified crime (id.). Specified crimes include an ofknsc in anyjul-isdiction which includes all tlie essential eleliicnts of criiiics such as grand I;ircciiy, cr-iminalpossession of stolcn property, m c l 21 class felony offense (.sc!c Executive Law tj 632-311 I). Jkcausc the piirpose of extending the period is to providc n mcaninghl renicdy to the victim, the statiitc is gencrdly read cxpmsivcly (see E:lkin 1, C:c~.v.rurino, AD2d 35 [2d Dept 19981). 248 Whethcr the tinic limitations is extendcd to scvcii years or ten years, Volt has hrought the coniplaint against dcfcndant Mrrrkowitz within the requisite lime pcriocl. Here, the original the coriiplaint was brought on .luric 23, 2003. B e c i i ~ i ~ c deferidant, in his plea in fcdcral court, statcd that hc began t-hc wrongdoing beginning in 1996 aiid into 1947, the tin-ieperiod i n which Markowilz dcfraudcd Volt is within tlic applicable tirile limitations pcriod pimuant to Cl LR 2 13-b (scrr i at d 40 [providing that i or the saiiie fedcral crime committed by tlie defendant in that action, thc court granted a sevcn-year statute of limitations to thc victim]). Accordingly, thc dcfciidant s motion to dismiss pursuant to the stahite of limitations is denied. 11 [* 13] 2.. LJni List Enricliiiieiit The dehidant niovcs to dismiss thc plaintiff s second cause of action for unjust cnricliment arguing that Volt failed to show that there was un-just cnricliment on tlic part of the defendant. Further, Markowitz argues that tlicr-c was negligence on tlic part of the plaintiffundcr the doctrine ofunclcaii hands, arguing that bccause plaintiff s owii ciiiployees pcrpctuated the li-aid, Volt cmiiot argue iIii.just cnricliment as against this defendant. Finally, tlie defendant avers that the statutc of limitations tias run. Tlic court need not deal with thc statule of liniitntions ar-gument for the reasoiis sct forth abovc (SCC CPLR 2 13-b), only rcvicwiiig the reniainiiig arguments proffered by the de rend a tit . A claim for unjust cnrichment rests upon the cquitable priiiciplc that n person sliall not IJC allowed to enrich I~imsclf n j uslly at thc cxpciise 01 a n o t h ~ r u (,Slorimr v Mudison Squnrc Gardcrz Cwitw, fm:., AD2d 56 92, 95 [Ist Dept 19771, quotingMillc?t.vLSr:lzlos.s,21 8 NY400, 407 [Icllh]). 11 is an obligation which the law creates, i n the abscticc o l any agrecnicnt, whcn and because the acts of the parties or othcrs Iiavc placed in the possession o f one person money, o r its cquivalcnt, uridcr such circurnstaiiccs tliat in equity and good conscicnce he ought not to rctaiii it, arid which ex acquo et bono belongs to another (id). recover from a particular defendant, a plaintiff must 1 0 dcmonslrate that serviccs wcrc pcrfoimecl lor the defendant rcsultiiig in its iirijust enrichment ( h m Nrrris cn cB C . h . v Evrr-lust World sBoxing Hcadqz.rurt.cw Cotp., 296 AD2d 103, 108 [ 1 sl Dept 20021, ., citing Kq?rnl!s Tire Serv. v Azlck Tr.ccrd C ~ O ~ J ? 124 AD2d I O I 1 , 1013 [4th Dept 19861). TTci-c, the plaiiitiff has madc out a viable cause of action for unjust enrichment. It is undisputed that Markowitz received payincnt for worknot done, rcccivcd by thc City based onVolt s approval. I hesefraudulcnt actions eveiitiially caused tlic DEP not to pay Volt for its work undcr thc 12 [* 14] contractual agrccnicnt, and even forced Volt to reirnhursc ttic City ofNew York for the Ikaudulentlyniadc payments. In the casc at bar, the cquitablc principal that a person shall not bc allowed to enricli Iiiniseli iriijuslly at the expense of aric)tlicr controls ( M i l l t ~ , 8 N Y at 407), and txcausc thc 21 he plaintiff has sufficiently allcgcd that Markowitz was iinjustly enrichcd by tlic scl~cmc pcrpctr-atcd, Ihere is a vidJ1c claiiii for uiijiist enrichment. Accordingly, thc dcfcndant s tnotiori to disn-iiss this cause of action lor I ailur-e io state a cause of action is dciiicd. 111tlic alternative, the dekndaiit argues that the plaintiff, bccausc ofunclcaii liands, is bar~ed from bringing a claim oPiirijust enricliment. The doctrine ofuiiclcan liands is only available wher-e [a] plaintiff is guilty of iiiiiiioral or unconscionable conduct directly rclatcd to the subject iiiattcr, and the p i r t y scdcing to in vokc) thc cloctritic is irtjurd by s z d i c o ~ i d i d ( F i y w r v BPI/,99 AD2d 9 1 , 96 [ 1st Dept 19x41 [emphasis added], citing Wciss 17 Mul//loM,t.,.LjOiI~s~7ilut ,. Cuip., 1 NY2d 3 10, 3 16 [ 19561). I Icrc, the court disagrces with the dekndanl. It undisputed tliat the corripriy s conducl,through its employecs, is directly rclatcd to the subject mattcr at liand arid that thcplaintiff s cinployees helped tu perpetuate the fraud. Nor is it controverted that Volt controllcd thcsc employees. Nonetheless, there is ; 1 question of fact of whcthcr Volt is liablc for its ciiiployccs actions. Further, the party seeking to invoke this doctrine here is himsclf part and parcel of tlic fraud committed. Indeed, Markowitz was not iii.jur-cd hy tlic coilduct of Volt or its ciiiployccs; lie pcrpctuatcd tlic saiiic fraud. The court will iiot allow ilie defendant to use this doctriiie as boih a shield and n sword. The defendant s motion to dismiss the second cause ofaction for unjust enrichment is denied. 3. Indemnification I hc ncxt cause of action the defendant sccks to dismiss is that of indernnificatiori. 13 [* 15] Mar-kowitz nrgiies that because lie did not have an indcpcndcn duty to the DEP, tlic plaintiff has no claim or basis for indeninificatiori as against hini. I n the altemativc, Mar-kowitz argues that tlzc statute 0 1 liniitations bars rccovery. I hccourt disagrccs with both ar-gumciits. The court f w i s I irst lo the statute of limitations argunicnt. A cause of action for indeninification . . . is inclcpcndcnt of tlic underlying wrong and for the p u i p s e of the Statute ol I ,imilations [the aclion] accriies when the loss is suffered by thc party seeking indemnity (City 01 New YoiYc I Lerrtl h l m s . Assh, 222 AD2d 1 19, 124 [ 1 st Dept 19961, quoting Mcllcrwiott v City of N c w York, SO N Y 2 d 2 I I, 215 [198O]). IIcre, the plaintiff seeks indei-nniGcatiolI~tioii its injury nftcr for it was required to make reiniburser-nents for the suiiis thc plaintiff had causcd the City of New York to pay. Bccausc tlic plaintiff allcgcs that payment was made in October 1997, and because tlic tlic C:oinplnir-it was iilcd 011 May 23, 2003, statute ollimitations time li-ame of six years 113s iiot niii. Accordingly, tlic dcfcndar-it s inotioii to dismiss bascd 0 1 the 1 statute of limitations is dciiiccl. hi turning to the issue ol duty, the court notes that indemnification is available to a party who is fiee of actual wrongdoing and whose liability is vicarious (JCL Lirn v 147 Errst 44th Sti-wt Coip., 186 AD2d 353, 353-354 [Ist Dept 19921). That party niay turn to the actual wrongdoer foiindernnific;ltioii (id..). In thc classic iiidcrnnification case, tlic onc entitled to indemnity li-om aizothcr had commi ttcd 110 WI-oiig, by virtue of some relationship with the tort-lkasor-or obligntion but imposed by law, was nevertheless licld liable to the third party (D hribrosio 1 Cily of N w Yrwk, 55 NY2d 454,460-6 I [ 1%2]). Here, the plaintiIlhas made out a viable claim lor indemnilication h m Markowitz. W hilc it is disputed as to what extent there was a relationship between Markowitz and Volt, Volt allcgcs that it required these individuals and companies to subinit Ionm to the plaintiff as proof of 14 [* 16] coiiipletiori. C:ontrary to defkndant s assertion, one could pcrceivc a relationship bctween thc two parties as well a s an indcpcndent duty on the part of the defcndant to provide correct and precise iiiPorniation to the plainti1f. Inclcccl, thc alleged fraud committed upoii the plaintilf a n d the duty 01 Mar-kowitz ~ i o to dcli-aud the plaintiff are cnough for the plaiiitil f to scek inderniiil icstion li-om t Markowitx for-reimhursements iiiade to the City ofNew York duc to clefendant s actions. Thc court again notcs that this a~-giitiiciit, sounding in unclean hands, cannot be used as both a sliit.ld and sword to escapc liatiility where tlic defcndant is an alleged cohort to thc li-aud. I hc clefendant s inotion to dismiss thc third causc of. action l or indcIiiiii~icatioii denicd. is 4. I ii ducemen t c) f l 3 rea ch of ITi d 11ci ary 0bl i Eati 011 Markowitz seeks to dismiss tlic iburtli came of action for inducemciil ofbrcacli of fiduciary I obligation, arguing that thc plaintiff fails to statc ; causc of action because hc claims that there was no fiduciary duty 011 tlic part of Volt s en-iployees to the plaintif1 and, as such, no iriducenicnt to breach iiduciaiy obligations. Markowitz also argues that the stahite of limitations bars recovciy as to this causc o l action. The court disagrccs. A claim for aiding and abetting a breach of liduciary duty rcquii-es: ( 1 ) a bi-each hy a fiduciary of obligations to anotlicr, (2) that the defciidaiit knowingly induced o r participated in the breach, arid (3) that plaintiff suffer-cd dariiagc as a result of the brcach (Kaz!jincrii v C o/im, 307 AD2d 1 13, 125 [ l st Dept 2003][citatioris omittcd]). I Icre, the plaiiitiff has suiliciently plead that Markowilz may have induced llie plaiiitil l s employees to breach thcir iiduciary obligations to Volt. Eiiiployces of a coinpany arc prohibitcd from acting in any iiiaiiiier inconsistcnt with his agency 01-trust and is at all times bound to exercisc tlic utmost good faith and loyalty in tlic pcrfon-nancc oP his duties (Mur-itirneFish Pi-odLic(.s,h c . 15 [* 17] v World- Widrl; ish I rodizrcis, hic., 100 AD2d X 1, 88 1I st Dcpt 19841; ,scc uILso Chssman & Gassmtrw, C ert(filir4Prrhlic: Arc--ozitziati~sI S u l m m , I I2 A132tl 82, 83-84 [ I st I k p t 19851). Thc li-aid perpctuatcd by the plaintiffs ciiiployees constitute a breach o l that fiduciaiy obligation. Furthermorc, as indicated by the defcndant s allocution, Markowitz states that he knowingly participated in thc brcach. Finally, Volt sufficicritly allcgcs that Volt suffercd damagcs as a result, and narnely loss of iiiconic, loss of business and rcputati~)~~, hrfeiturc of thc contract hctwccn itit: DEl and Volt. 13ased upon tlic above rcasoniiig, Volt has made a viahlc claiiii against Markowitz h i - induccm e11 to t b1-e:ich fiduciary oh I i gati oils. hi the altcrnativc, tlic clcfcndant suggests that thc statute of lirnilalions bars recovery. Cicncrally, while there is iio siiiglc limitations period for breach of t iduciary claims ( , s w CYLK 2 131I ] ; CPLR 2 14[4]), a CBUSC of action for breach oIiidiiciary duty based on allcgatioiis of actual fiaud is subject to ii six-year lirnitatiuns pcriod (Kw!/iiian, 307 AU2d at 1 19, citing ChZlhcrg 11 S C ~ U W I L 289, AD2d 8 [ 1st Dept 20011). Furthcnnor-e, as articulated above, because CPLli 2 13-13 IFI applies in matters o l this nature, a victim of a crime may pursue an otherwise barred claim by ad-justing the statute of liniitations pcriod to a scveii or ten year period. Bascd upon thc rcasoriiiig set forth above, tlic platntill h a s brought this cognizablc claim against the ciekndant within the requisite tiiiic pel-iod. Thus, the ciekndmt s motion to dismiss tlic fourth causc of action for inducement of brcach of fiduciary obligatioii is denied. 5. Commercial Bri txrv Miirkowitz next argiics that the plaintiff fails to state a cause of action as to commercial bribery, arguing that tlicrc is no privatc causc of action fbr commercial bribery in this 1)eparlment. 16 [* 18] In the alternative, thc dcfcridarit argues that tlic stahitc of liiiiitatioiis period has run. Tlic court agrccs. Clorniiiercial bribery s when [one] conkrs, or oil ers or agrees to confer, any benefil upon amy employee, agent or liduciary without the consent ofthe lntler s employer or principal, with intciit to influence [otic s] conduct in relation to [onc s] cinploycr s or pl-incipal s affairs, and when the value ofthc bcricfit confcricd or offered or agrccd to be conferred cxcccds o m thousand dollars and causcs ccononiic hanii to thc cmploycr- or priiicipzll in an amount exceeding two huiirlrcd fifty dollars (Penal Law 5 180.03). As the b irst L)eparhiient in Sctrdmti.s v. Suniilomo Corp. articulates, thc creation of such a right of action under the statutc would tic inconsistent with the existiiig legislative and remedial sclieme, wliicli gives tlic powcr of cni urceincnt to tlic District Attorncy (279 AD2d 225, 230 [lst Depl 20011). Accordingly, there is rio private cause of ilctioll for coimiercial bribery (id.). Because the First T)epartmcrit has dccidcd that iio pr-ivatc right of action exists for coniriicrcial bribciy, the dcfciidant s rnotion to dismiss thc fifth causc of action is granted. Thc court nced not deal with tbc stahitc of limitations argumcnt. 6. liiiury to ICepitalioii, T,ost Business, atid J,oss of Value to Busiiicss Finally, the defendant moves to dismiss the sixth caiise 01 action pursurriit to tlic statutc of limitations. Insofar as this claini sounds in defamation, the statute of limitations is o w year, and it accrues upon publication of the ollending statemerit ( s w CPLR 2 1S[3]; Firth v Slirrc r$Ncw 1 0r.k~ 98 NY2cl365, 369 [2002]; hzlcrtai~inze~t I arttrer,~Groiip, lm-.v L)avi.r, 198 AD2d 63, 64 [lst Dcpt 19931). CPLK 2 1 3 4 docs not apply in this cause of action as tlic crime jiivolvcd was for fraud, and victims niay not utilize Cl LR 2 13-13 to toll claims foi-dcfaiiiation. Accordingly, the requisite statutc 17 [* 19] c of liinitatioiis applics. IIcrc, bcca~isc coniplaint was brought ycars aftcr tlic allcgcd defamation, tlic [he defendant's motion to dismiss the sixth cause of action ior injury lo reputation, lost busincss, aiid loss of value to busiiicss is granted. CONCLUSION Accordingly, it is hereby URDIERtN that ckfcndant Markowitz's motion to declare hiin as a poor pcrson pursuant to CPLK I I O I and to provide privileges allocated uiidcr C'PI,R I I02 is dcnicd; it is further ORDERED that thc dcfcndant's motion to dismiss pursuaiil to CPLR 301 3 for insufficiency of tlic Complaint is dcnicd; and it is hither ORDER17D that the dcfcndant Markowitz's Iiiolion to dismjss pursuaiit to CI'LK 32 11 (a) is giinted as to the IiMi cause of action for cornmcrcial bribery and the sixth causc of' action for injury to rcputation, lost business, and loss of value to busiticss, and is otherwise denied as to llle rcmai ii i ng causcs of action. Ilated: January 9, 2006 .. . . . - -

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