Lalicata v Lalicata

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Lalicata v Lalicata 2013 NY Slip Op 33297(U) December 18, 2013 Supreme Court, New York County Docket Number: 650582/13 Judge: Anil C. Singh Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 12/20/2013 1] INDEX NO. 650582/2013 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/20/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON. .ANIL C. SINGH Sv~_99URT JU8TICB PRESENT: PART_o_I_ Justice ~~~~ J. (j~&/_d. <J. The following papers, numbered 1 to INDEX NO. MOTION D A T E - - - MOTION SEQ. NO. Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Upon the foregoing papers, it is ordered that this motion is tAc. an/\ ()V / ___l_, were read on this motion to/for -~-'-·S'_l"_I'-'r{ ' - - - - - - - - - - - Notice of Motion/Order to Show Cause - Affidavits - Exhibits w'd:h 650 5f~ -14 <.XJ de.. c, t' Je..J I I\ I No(s).,_ _ _ _ __ I No(s). _ _ __ __ '2I No(s). 5 r:<..cc.or~IVl cc.- m(..morl\.Alu/>\ OjJ1/i1'or,. w (.J j:: en .., ::::> 0 I- C w a:: a:: w LL w a:: >..:.:.. ...J !!!. ...J z ::::> 0 LL en I- ~ (.J w 3; w a:: (!) w z a:: en 3r: - 0 w ...J ...J ~ 0 en (.J LL - w z ::c: 0 j:: 1- a:: 0 0 :ill LL H~S..(Bmfl ros'TIO! Dated: ,J.S.C. SUP'tmMB COURT 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 0 CASE DISPOSED f8( NON-FINAL DISPOSITION 0 GRANTED DENIED 0 GRANTED IN PART 0 OTHER 0 SETILE ORDER 0 SUBMIT ORDER ODO NOT POST 0 FIDUCIARY APPOINTMENT 0 REFERENCE % [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 61 -----------------------------------------------------------------)( CANDICE FEINBERG LALICATA, Plaintiff, DECISION AND ORDER -againstSTEVEN LALi CATA, DIANA FERNANDEZ, JAMES HART, BRIAN MARTINEZ, and JOHN DOE 1, Defendants. Index No. 650582/13 -----------------------------------------------------------------)( HON. ANIL C. SINGH, J.: Defendant Diana Fernandez moves pursuant to CPLR 321 l(a)(7) for an order dismissing the causes of action against her for conversion, unjust enrichment, and false arrest, contending that she did not participate directly in a fraudulent scheme by the co-defendants to persuade plaintiff to withdraw large amounts of money from plaintiffs trust fund. Plaintiff opposes the motion. The complaint alleges the following facts. Plaintiff Candice Feinberg Lalicata is the daughter of a wealthy Manhattan businessman. When plaintiff turned 35-years-old, the corpus of a trust was made available to her. On March 29, 2011, she married defendant Steven Lalicata. Page 1 of 4 [* 3] In 2012, defendant Steven Lalicata, his cousin defendant James Hart, and his best friend defendant Brian Martinez concocted an elaborate scheme to steal large sums of money from plaintiff. Specifically, plaintiff alleges that her husband, Hart, and Martinez led plaintiff to believe that her husband owed large gambling debts to members of organized crime. Through a series of "coordinated communications," they convinced plaintiff that Steven Lalicata would be physically harmed if plaintiff did not make huge amounts of cash available to defendant Lalicata on short notice. The complaint asserts that defendants' representations were pure fiction. Plaintiffs husband owed no gambling debts. Members of organized crime never threatened him. In reality, Steven Lalicata was allegedly engaged in an extramarital affair with defendant Diana Fernandez, and Steven Lalicata used money withdrawn from plaintiffs trust fund to support Ms. Fernandez. With respect to defendant Diana Fernandez, the complaint states that Ms. Fernandez resides in Englewood, New Jersey. Plaintiff contends that her husband used a bank located in Englewood to withdraw funds that belonged to plaintiff. The complaint alleges further that Steven Lalicata provided defendant Diana Fernandez with items purchased with plaintiffs money, including jewelry, luxury goods, home furnishings, and travel; Diana Fernandez traveled with the coPage 2 of 4 [* 4] defendants to Las Vegas and other places; and defendants Steven Lalicata and Diana Fernandez used plaintiffs money to take a vacation in the Dominican Republic (Complaint, p. 13, para. 67). Finally, the complaint alleges that Diana Fernandez exchanged a series of emails with plaintiff; that Diana Fernandez made a complaint to the police department regarding claimed harassment by a private investigator hired by plaintiff; and that plaintiff was arrested and charged with aggravated harassment under Penal Law 240.30(1)(a) and (2) based on false allegations by Diana Fernandez. The complaint asserts causes of action for fraud; aiding and abetting fraud; conversion; unjust enrichment; and false arrest. Discussion "On a motion to dismiss pursuant to CPLR 321 l(a)(7), the court accepts as true the facts as alleged in the complaint and affidavits in opposition to the motion, accords the plaintiff the benefit of every possible favorable inference, and determines only whether the facts as 'alleged manifest any cognizable legal theory" (Elmaliach v. Bank of China Ltd., 110 A.D.3d 192 [151 Dept., 2013]). After careful consideration, the Court finds that the facts alleged in the complaint against defendant Diana Fernandez are clearly sufficient at this early Page 3 of 4 [* 5] stage of the litigation to state all of the elements of causes of action sounding in conversion, unjust enrichment, and false arrest. Accordingly, it is ORDERED that the motion is denied; and it is further ORDERED that defendant Diana Fernandez is directed to serve an answer to the complaint within 20 days after service of a copy of this order with notice of entry; and it is further ORDERED that counsel are directed to appear for a preliminary conference in Room 320, 80 Centre Street, on February 5, 2014, at 9:30 AM. The foregoing constitutes the decision and order of the court. Date: lL-((~\\ 3 New York, New York . Anil C. Singh HON. ANil. C. SINGH SfJPl'IBME COURT rusTici! Page 4 of 4

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