Curcio v AAA & G Equip. Leasing Co. LLC

Annotate this Case

Download PDF

Curcio v AAA & G Equip. Leasing Co. LLC 2012 NY Slip Op 32091(U) July 6, 2012 Sup Ct, Nassau County Docket Number: 2168412010 Judge: Michele M. Woodard 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 COUNTY OF NASSAU ------- --- ---x Michele M. Woodard JOSEPH V CURCIO Plaintiff TRIAL/IAS Par 8 -against- Index No. 2168412010 Motion Seq. No. : 01 AA & G EQUIPMENT LEASING CO. LLC DECISION AND ORDER Defendants. .-------- --------- x Papers Read on this Decision: Plaintiffs Notice of Motion for Leave to Amend Verified Complaint Defendant's and Proposed Defendant's Notice of Cross Motion Plaintiff s Reply Affirmation and Opposition to Defendant's Cross Motion Defendant' s and Proposed Defendant' s Reply Affirmation Plaintiff Joseph V. Curcio (hereinafter " Curcio ) moves by Notice of Motion for leave to amend his November 17 , 2010 complaint and add Thomas Borek (hereinafter " Borek" ) as an additional defendant , pursuant to CPLR 3025(b). Defendant AA&G Equipment Leasing Co. LLC (hereinafter " AAG" ) and proposed defendant Borek fied a cross Plaintiff s motion; dismiss Plaintiff s accounting and breach of fiduciar motion to: oppose duty causes of action; and extend the time to complete discovery. FACTS Plaintiff seeks to recover damages caused by the acts of AAAG and Borek that amount to several causes of action. Under an Intercreditor Agreement (hereinafter " Agreement" ) between AAAG and Federal Insurance Company (hereinafter " Federal" ), a bonding company, AAG acquired assets and liabilities of Samson Construction Co. , Inc. (hereinafter " Samson ), including [* 2] ongoing Samson construction contracts. On October 16 , 2008 , AAAG contracted with Plaintiff, a key Samson employee , whereby AAAG agreed to pay Plaintiff, in exchange for performing certain services to complete the Samson construction contracts. Under the subject employment contract , payments to Plaintiff were to consist of compensation and percentages of revenues received by AAAG from an account established pursuant to the Contract. Plaintiff alleges that he is entitled to recover damages based on AAG' s breach of the Contract by failing to fully compensate Plaintiff for his services. Plaintiff also alleges that AAG breached its fiduciar obligation to receive and hold revenues in trust for Plaintiffs benefit entitling Plaintiff to an accounting from AAG. Furhermore , Plaintiff alleges that Borek , the proposed defendant , had a fiduciary duty to Plaintiff regarding the fuds deposited into the account under the Contract and the funds received by AAG from that account. Although the account was meant to pay for Plaintiffs construction contracts , costs to perform and complete certain Samson AAAG and Borek made payments from that account that did not constitute Plaintiffs incurred costs of performance. Since AAAG and Borek failed and refused to pay the remaining balance , Plaintiff seeks to recover his share as provided in the Contract of which he has been deprived. Furthermore , Plaintiff argues that he has a legal right to compensation by Borek from a " lock-box account" within Borek' s control that was set up pursuant to the Agreement to pay for Samson s overhead , which included Plaintiffs compensation and benefits. Despite Plaintiffs demand for his owed compensation and benefits , Borek took possession of and converted the funds deposited into the lock- box. Plaintiff commenced this action upon fiing his complaint on November 19 2010 , to which Defendant served its Answer and Counterclaims on December 29 , 2010. During discovery, Plaintiff learned that Borek breached his fiduciary duties to Plaintiff and converted funds that . . [* 3] were deposited into the lock- box account and were to be paid to Plaintiff. ANALYSIS NY CPLR ~ 3 025(b) provides in relevant par that a " party may amend (its) pleading, or supplement it by setting forth additional or subsequent transactions or occurrences , at any time by leave of court. . .. Leave shall be freely given upon such terms as may be just. . " In general leave to amend a pleading should be granted where there is no significant prejudice or surrise to the opposing party and where the documentar evidence submitted in support of the motion may indicates that the proposed amendment NYS2d 76 have merit." accord, e. 80 (2d Dept 2010) (emphasis added); & Throat Assoc. , P. York 60 NY2d 957 60 AD3d 846 959 (1983); Pike 847 (2d Dept 2009); Ingrami v. v. New York Life Ins. Co. , 901 v. , Vista Props. v. Edenwald Contr. Co. Rovner 45 AD3d 806 Rockland Ear, Nose City of New 808 (2d Dept 2007). " In the absence of prejudice or surrise resulting directly from the delay in seeking leave , such palpably insuffcient or applications are to be freely granted unless the proposed amendment is accord Vista patently devoid of merit. " Lucido v. Mancuso 49 AD3d 220 , 221- 22 (2d Dept 2008); Props. v. Incorporated Vii. ofRockvile Ctr. 59 AD3d 15 27 (2d Dept Janssen 60 AD3d at 847; 2008); Ingrami 45 AD3d at 808 ("totally without merit or palpably insufficient as a matter of law ). Accordingly, " the movant must make some evidentiar showing that the proposed amendment has merit , and a proposed amendment that is plainly lacking in merit wil permitted. Janssen 59 AD3d at 27 (2d Dept 2008); accord Monteiro v. not be D. Werner Co. , 301 AD2d 636 637 (2d Dept 2003) (denying leave to amend on grounds oflack of notice , not because ofmeritless claims). " A determination whether to grant () leave is within the trial court' s broad discretion. Ingrami 45 AD3d at 808. Defendant opposes the motion for leave to amend and requests the Court to dismiss some [* 4] of Plaintiffs causes of action for being meritless. Plaintiffs cause of action of breach of fiduciary duty is likely to have merit. The Contract provides for payment to Plaintiff based in par on revenue percentages. The " agree(ment) to pay a percentage of gross revenues to plaintiff in reliance on an agreement , express or implied , may support a finding that defendant owed plaintiff a fiduciar obligation with respect to the Scaglione Constr. , Inc. 2009 NY Misc. LEXIS 5793, at *6- 7 (NY Sup. Ct. , Queens Castle Restoration Cnty. , May 29 allotted percentage of gross revenues. 2009) (citing v. LoGerfo Trustees of Columbia Univ. in City of New York, 35 AD3d 395 (2d Dept 2006)). Furthermore , ongoing conduct between the paries may give rise to a Sergeants Benevolent Ass legally cognizable fiduciary relationship. n Annuity Fund v. Renck, 796 NYS2d 77, 79. Additionally, fiduciar liability is " necessarily fact-specific " and " not dependent solely upon an agreement or contractual relation between the fiduciar results from the relation. v. EBC L Inc. and the beneficiar but Co. 5 NY3d 11 , 20 (2005). Goldman Sachs Therefore , Plaintiff s breach of fiduciary claim may have merit , so that cause of action wil not be dismissed. Since a fiduciar relationship also serves as the basis for an accounting cause of action, there may be merit to Plaintiffs accounting cause of action as well. Therefore , the cause of action for an accounting wil also stand. Defendant also argues that Plaintiff s conversion claim is without merit. Conversion occurs when one , without authority, intentionally controls another s personal propert interferes with that person NY3d 43 , 49- 50 s possessory right. (2006). " Two Colavito v. and New York Organ Donor Network, Inc. key elements of conversion are (1) plaintiffs possessory right or interest in the property and (2) defendant's dominion over the propert or interference with it , in derogation of plaintiff s rights. Id. Plaintiff alleges that he rightfully owed the funds in the account that was set up to pay him , that Borek controlled that account , and that Plaintiff [* 5] demanded but was refused payment. To show that Plaintiffs cause of action for conversion against Borek lacks merit , Defendant points to Paragraph 13 of the Agreement , which expressly excludes third- par beneficiary rights. However , Borek , AAAG , and Plaintiff are all paries to and signed Plaintiff s employment contract , so Plaintiff s conversion cause of action may have merit , precluding dismissal. Defendant also argues that some of Plaintiff s causes of action should be dismissed for being duplicitous. First , Defendant contends that Plaintiffs cause of action for an accounting is duplicitous with his breach of fiduciary duty claim. The latter , though , unlike an accounting claim , also requires a showing that the fiduciary s misconduct caused Plaintiff to incur damages which Plaintiff has alleged. Kurtzman v. Bergstol 40 AD3d 588 , 590 (2d Dept 2007). Therefore these causes of action are not duplicitous , precluding their dismissal. Defendant also contends that Plaintiff s accounting and breach of contract causes of action prima facie are duplicitous. The Cour disagrees. A showing to recover damages for breach of contract consists of four elements: " (1) the existence of a contract , (2) . . . performance under the contract, (3) the defendant's breach of that contract , and (4) resulting damages. JP Morgan Chase v. JH Elec. of New York, Inc. 69 AD3d 802 803 (2d Dept 2010). However , the "right an accounting is premised upon the existence of a confidential or fiduciar breach of the duty imposed by that relationship respecting propert accounting has an interest." Time Transport LoGerfo 35 AD3d at 397 (2d Dept 2006); to relationship and a in which the pary seeking v. accord Akkaya the Prime 45 AD3d 616 (2d Dept 2007). These different elements render these two causes of action distinct , not duplicitous , so they wil not be dismissed. Defendant wrongly contends that Plaintiff s breach of contract and breach of fiduciar duty claims are duplicitous to warrant dismissal. A breach of contract is not a tort Kopel [* 6] 56 AD3d 320 320 , unless a legal duty independent of the contract was Bandwidth Tech. Corp., violated. Clark- Fitzpatrick, Inc. v. Long Island R. Co. 70 NY2d 382 389. However , a fiduciar relationship, which Plaintiff alleges , if shown to exist , would establish such legal duty to allow the v. See Apple Records, Inc. claim of conversion to proceed. Capitol Records, Inc. 137 AD2d 50 55 (1st Dept 1988) (" (U)nless the contract creates a relation , out of which relation springs a duty, independent of the mere contract obligation , though there may be a breach of the contract , there is no tort , since there is no duty to be violated. see also Batas AD2d 260 v. Rich 264 (1st Dept 2001) (quoting New York Cent. v. Prudential Ins. Co. of Am. , 281 Hudson Riv. R. R. Co. 87 NY 382 390 (1882) (holding that although a tort is different from a mere contractual obligation , when a " duty grows out of relations of trust and confidence. . . , the ground of the duty is apparent , and the tort is , in general , easily separable from the mere breach of contract." Defendant argues that the conversion cause of action should be dismissed for being duplicitous because there must be independent facts to constitute a separate taking that would give rise to tort liabilty. However , a breach of contract may occur without converting another propert. A breach of contract claim goes to conduct not in accordance with an agreement , not necessarily the wrongful taking of another s propert that constitutes the tort of conversion. Therefore , the damages sought for the alleged conversion is not merely based upon the breach of contract , and the prima facie elements of those causes of action are very different , belying Defendant's contention of duplicity. Defendant furher argues that the money of a conversion claim must be specifically identified and segregated and that Defendant must be obligated to retur or otherwise treat the specific fud in a particular manner. However , Plaintiff has adequately alleged this obligation and specifically identified the money that he seeks. Furthermore , an accounting would establish the [* 7] amounts , if any, owed to Plaintiff. Plaintiff has alleged legal ownership or an immediate superior right of possession and Borek' s control of an identifiable fund. Therefore , these causes of action wil stand. Defendant also contends that Plaintiff s causes of action in equity should be dismissed since he has available causes of action at law. The Court wil not dismiss Plaintiff s cause of action for an accounting because " (al)though plaintiff may have a legal remedy, ()he is not precluded from seeking equitable relief by way ofan accounting predicated upon. . . the existence of a fiduciar relationship. 1214A (Sup. Ct. , Nassau County, 2010) (citing Streamline Agency Inc. v. Washington Tit. Ins. Co. Wool Trading Co. Fur v. 26 Misc. 3d Fox, Inc. George 245 NY 215 (1927)). However , Defendant is correct with respect to Plaintiffs and declaratory relief. To alia irreparable har in causes of action for injunctive obtain a preliminar injunction , the plaintiff must demonstrate , inter v. City of New York the absence of the injunctive relief." Untitled LLC 51 AD3d 509 , 511 (1 st Dept 2008). " Irreparable injur. . . mean( s) any injur for which money damages are insufficient v. Walsh McLaughlin, Piven, Vogel, Inc. har must be. . . imminent , v. Design Concepts W J Nolan 221 AD2d 454 , 455 (2d Dept 1995); Co. 114 AD2d 165 , 174 (2d Dept 1986), and the not remote or speculative Golden v. Steam Heat 216 AD2d 440 442 (2d Dept 1995). Because Plaintiff cannot establish likely entitlement to damages , an injunction would be based upon speculation. Furhermore , Plaintiff already has adequate relief available in the form of causes of action at law. Since Plaintiff fails to explain why damages would inadequately relieve his loss , Plaintiffs cause of action for an injunction is dismissed. Likewise not be employed. (w)here there is no necessity for resorting to the declaratory judgment it should James v. Alderton Dock Yards 256 NY at 305; accord Brownell v. Board of [* 8] 239 NY 369 Education. Sartorious v. Cohen 249 NY 31. Declaratory judgment " is usually unnecessar where a full and adequate remedy is already provided by another well- known form of action. James 1931 NY LEXIS 1056 , 13- 14 (1931); accord Hesse v. Speece 204 AD2d 514 515 (2d Dept 1994) (noting that " not seeking a declaration as to the relative rights of the paries. . . (but rather) seeking a declaration that the defendants were negligent. . . is not the function of a declaratory judgment action. . . and should be dismissed. ). Finally, in light of the Cour' granting of leave to Plaintiff to amend his complaint to add a codefendant , the Cour will extend upon Defendant' s request , the time for the parties to complete discovery. UPON the Plaintiff s Notice of Motion dated August 10 , 2911 , seeking leave to amend his Verified Complaint pursuant to CPLR ~ 3025(b), affirmation of Lawrence M. Cohen , attorney for the Plaintiff dated August 10 , 2011 , setting forth all relevant facts required by law, together with exhibits annexed thereto , and upon all prior proceedings heretofore had herein , and due deliberation having been had thereon NOW on application of Friedman Harfenist Kraut & Perlstein LLP , attorneys for Plaintiff it is ORDERED , that the Plaintiffs application for an Order pursuant to CPLR ~ 3025(b) seeking leave to Amend his Verified Complaint dated November 17 , 2010 is granted. It is furher ORDERED , that Defendant's motion to dismiss Plaintiffs causes of action for declarative judgment and injective relief are hereby granted. It is further ORDERED , that Defendant' s request for an extension of time to conduct discovery is hereby granted. It is further -------------- -------------------- - -- - --- --- ----- -- --- --- -- ---- -------- )( --------;" --- --- ------- --- --- ------------- -- - - - --- - [* 9] ORDERED , that Plaintiff is directed to serve and fie the Supplemental Summons and Amended Verified Complaint dated August 9 2011 upon the Defendant AAA&G Equipment Leasing Co. LLC and Defendant Thomas Borek within ten (10) days of receipt ofthis order. It is fuher ORDERED that the caption is amended as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ------ ---- ---- ---- x JOSEPH V CURCIO Plaintiff Index No. 21684/2010 -against - AAA & G EQUIPMENT LEASING CO. LLC and THOMAS BOREK Defendants. DATED: July 6 , 2012 Mineola , NY 11501 ENTER: F:\DECISION - LEAVE TO AMEND\Curcio Breach ofContract.wpd ENTERED JUL 3 1 2012 HAUCOUNlY COUNTY CLEftK' 'S OFFIC!

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.