SR Holdings I, LLC v Cannavo

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SR Holdings I, LLC v Cannavo 2017 NY Slip Op 33371(U) June 30, 2017 Supreme Court, Westchester County Docket Number: Index No. 54202/2016 Judge: Sam D. Walker Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] WESTCHESTER COUNTY CLERK 07/06/2017 12:51 PM NYSCEF DOC. NO. 169 INDEX NO. 54202/2016 RECEIVED NYSCEF: 07/06/2017 ., To commence the statutory time for appeals as of right 5513(a]), you are (CPLR 5513[a]), serve a copy advised to se'rve of this order, with notice ·of parties. of entry, upon all parties. SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY PRESENT: HON. HON. SAM SAM D. WALKER WALKER, , J.S.C. J.S.C. . PRESENT: -----------------------------------x ---------------------------------------------~--------------------------------x HOLDINGS I, LLC SR HOLDINGS Plaintiff, Plaintiff, Index No. 54202/2016 54202/2016 Index DECISION ORDER DECISION & ORDER -against-againstSeq # 2 Seq#2 JOSEPH CANNAVO, CANNAVO, LEONARD LEONARD CANNAVO, CANNAVO, CARMELA CARMELA JOSEPH CANNAVO, IRVING IRVING PLACE PLACE PROPERTIES, PROPERTIES, LLC; LLC, ONE ONE CANNAVO, WAY PROPERTIES PROPERTIES LLC, PUTNAM PUTNAM PARK PARK PROPERTIES PROPERTIES WAY LLC, REGENT STREET PROPERTIES LLC, LLC, REGENT STREET PROPERTIES LLC, WASHINGTON PARK PROPERTIES · LLC, BLUE BLUE WASHINGTON PARK PROPERTIES MOUNTAIN PARTNERS PARTNERS LLC, CROWN CROWN ROYAL ROYAL LLC, MOUNTAIN HASECO PROPERTIES PROPERTIES LLC, WHITETAIL WHITETAIL REATY REATY GROUP GROUP HASECO CAPTIAL REATY REATY PARTNERS PARTNERS LLC, ALL LLC, CAPTIAL ALL NY HOLDINGS LLC, M&T M&T BANK, BANK, PROVIDENT PROVIDENT BANK BANK n/k/a n/k/a HOLDINGS STERLING NATIONAL BANK, REQ RED SOX SOX FUNDING FUNDING LLC, ·. STERLING NATIONAL BANK, BRANCA REATY REATY LLC, CASTLE CASTLE TITLE TITLE INSURANCE INSURANCE BRANCA AGENCY BLACK DIAMOND DIAMOND GROUP GROUP LLC, RANDOM RANDOM AGENCY INC., BLACK PROPERTY GROUP GROUP LLC, 82-84 82-84 HAMIL HAMILTON MANOR LLC, PROPERTY TON MANOR DEREK WASHINGTON, RANCA CONSULTING DEREK WASHINGTON, RANCA CONSUL TING SERVICES LLC, CREATIVE CREATIVE SCAPES SCAPES MANAGEMENT MANAGEMENT SERVICES SINGER ENERGY ENERGY GROUP GROUP LLC, SHANA SHANA SIMMONS, SIMMONS, LLC, SINGER NEW YORK YORK STATE STATE DEPARTMENT DEPARTMENT OF TAXATION TAXATION & . NEW FINANCE, JOHN JOHN . DOE DOE #1 #1 through through JOHN JOHN DOE #15 FINANCE, INCLUSIVE, INCLUSIVE, Defendant. Defendant. ------------------------------------------x ------------------------------------------------------------------------------x The following following papers papers were were considered considered on the the motion motion seeking seeking dismissal dismissal of of the the The complaint and all cross-claims cross-claims against against Castle Castle Title Title Insurance Insurance Agency,'lnc.: Agency, Inc.: complaint PAPERS PAPERS NUMBERED NUMBERED Notice of of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-H A-H •Notice Memorandum of of Law Law in Support Support Memorandum Affirmation/Affidavit in Opposition/Exhibits Opposition/Exhibits A-M A-M Affirmation/Affidavit 1 of 9 1-10 11 11 12-26 [*FILED: 2] WESTCHESTER COUNTY CLERK 07/06/2017 12:51 PM NYSCEF DOC. NO. 169 INDEX NO. 54202/2016 RECEIVED NYSCEF: 07/06/2017 27 28 28 29 29 Memorandum Memorandum of Law in Opposition Opposition Amended Affidavit Affidavit in Opposition Amended Opposition Memorandum Memorandum of Law in Reply Reply' · Based Based upon upon the foregoing foregoing the motion motion is GRANTED GRANTED in part and DENIED DENIED in part. The plaintiff plaintiff commenced commenced this action to to recover recover on deficiency deficiency judgments against the The this action judgments against named two previously Action 2"). The named defendants defendants from from two previously filed actions actions ("Action ("Action 1 and Action The plaintiff plaintiff judgment was entered Action 1 in favor states that on or about states that about September September 24, 2012, 2012, a judgment entered in Action favor of SR Holdings Holdings I,I, LLC ("SR Holdings") Holdings") against against Fox Island Island Properties, Properties, LLC, Joseph Joseph Cannavo, LLC, Great American Development, Cannavo, Leonard Leonard Cannavo, Cannavo, Bridgeport Bridgeport Realty Realty Group, Group, LLC, GreatAmerican Development, Building Building & Remodeling, Remodeling, ln'c., In'c., Haseco Haseco Properties Properties LLC, Irving Place Place Properties Properties LLC, One One Way Properties Street Properties Way Properties LLC, Putnam Putnam Park Properties Properties LLC, Regent Regent Street Properties LLC, Washington Washington Park Properties Properties LLC and Western Western Greenwich Greenwich Holdings Holdings LLC , in the amount amount ("Judgment 1 1"). of $2,836,459.42 $2,836,459.42 ("Judgment "). 2013, a judgment was entered The plaintifffurtherstates plaintiff further states that The that on or about about January January 7, 7,2013, ajudgmentwas entered in Action Action 2 in favor favor of SR Holdings Holdings against against Fox Island Island Properties Properties LLC, Joseph Joseph Cannavo, Cannavo, Leonard Leonard Cannavo, Cannavo, Irving Place Place Properties Properties LLC, One One Way Way Properties Properties LLC, Putnam Putnam Park Properties Washington Park Properties Properties LLC, Regent Regent Street Street Properties Properties LLC, Washington Properties LLC, and Western Greenwich Greenwich Holdings, Holdings, LLC in the amount amount of $1,618,929.82 $1,618,929.82 ("Judgment ("Judgment 2"). Western The plaintiff plaintiff alleges alleges that that Judgment Judgment 1 and Judgment Judgment 2 remain remain wholly unsatisfied and The wholly unsatisfied this action action seeks, seeks, inter inter alia, to set aside aside the alleged alleged fraudulent fraudulent conveyances conveyances of fifty fifty six six. properties from from Joseph Joseph Cannavo, Cannavo, Leonard Leonard Cannavo, Cannavo, Irving Place Place Properties Properties LLC, One One properties Way Properties Properties LLC, Putnam Putnam Park Properties Properties LLC, Regent Regent Street Street Properties Properties LLC, Way Washington Park Park Properties Properties LLC, and Haseco Haseco Properties Properties LLC (collectively (collectively "the transferor transferor Washington defendants") to the defendants defendants Black Black Diamond Diamond Group Group LLC, Blue Blue Mountain Mountain Partners Partners LLC, defendants") 2 2 of 9 [*FILED: 3] WESTCHESTER COUNTY CLERK 07/06/2017 12:51 PM NYSCEF DOC. NO. 169 ,, INDEX NO. 54202/2016 RECEIVED NYSCEF: 07/06/2017 Cr;wn Crown Royal Royal LLC, Whitetail Whitetail Realty Realty Group Group LLC, Capital Capital Realty Realty Partners Partn.ers LLC, Random Random Property transferee Property Group Group LLC, and 82-84 82-84 Hamilton Hamilton Manor Manor LLC ( collectively collectively "the transferee The action defendants"), defendants"), in violation violation of Debtor Debtor and Creditor Creditor Law 273, 273-a, 273-a, 275 and 276. The action also seeks seeks to set aside aside twelve twelve mortgage mortgage encumbrances. encumbrances. Amended Verified Verified With Title Insurance With respect respect to Castle Castle Title Insurance Agency, Agency, Inc. ("Castle"), ("Castle"), the Amended Complaint fraudulently delayed fifty Complaint alleges alleges that that Castle Castle negligently negligently and/or and/or fraudulently delayed in recording recording the fifty six deeds transferor defendants deeds and ten of the mortgage mortgage documents documents on behalf behalf of the transferor defendants and Judgment the transferee defendants to aid in them them avoiding avoiding payment transferee defendants payment of Judgment Judgment 1 and Judgment 2. The also alleged alleged conspiracy The amended amended complaint complaint also conspiracy to defraud defraud creditors creditors and civil RICO RICO violations violations against against Castle. Castle. Castle files this seeking dismissal dismissal of the claims claims against Castle now now files this motion motion seeking against it, pursuant pursuant to CPLR that the plaintiff's fails to satisfy satisfy basic CPLR 3211 (a)(7). (a)(7). Castle Castle argues argues that plaintiff's amended amended complaint complaint fails basic 3014 and 3013. 3013. It does statutory requirements as set forth statutory pleading pleading requirements forth in CPLR CPLR 3014 does not allege allege that that judgment debtor, does it allege Castle Castle is a judgment debtor, nor does allege that that Castle Castle had any any connection connection with the judgment debtors, argues that that it does plaintiff, plaintiff, the judgment debtors, or the other other co-defendants. co-defendants. Castle Castle argues does not which the property transfer or financial financial transaction filings were specify specify the properties properties for for which property transfer transaction filings were delayed were for delayed and it does does not specify specify which which alleged alleged delays delays were for the .purpose ,purpose of avoiding avoiding payment. Castle Castle argues argues that that the plaintiff does not allege allege that Castle performed performed title title plaintiff does that Castle payment. services any party's party's behalf, behalf, nor does it allege deviated from accepted services on any nor does allege that that Castle Castle deviated from accepted filing documents. documents. Castle asserts that standards standards and practices practices in filing Castle asserts that any answer answer would would require require speculate as to the the specifics specifics of of the plaintiff's plaintiff's claims. claims. it to speculate Castle also also asserts asserts that that SR Holdings Holdings fails fails to plead plead a proper proper claim claim for for negligence negligence Castle because the the plaintiff plaintiff does does not not allege allege a relationship relationship between between Castle Castle and SR Holdings Holdings that that because 3 3 3 of 9 [*FILED: 4] WESTCHESTER COUNTY CLERK 07/06/2017 12:51 PM NYSCEF DOC. NO. 169 INDEX NO. 54202/2016 RECEIVED NYSCEF: 07/06/2017 would Castle and without without a duty duty the the claims claims cannot cannot survive. survive. would trigger trigger a duty duty on the part of Castle Castle that the plaintiff's amended complaint complaint fails fails to plead claim Castle further further asserts asserts that plaintiff's amended plead a proper proper claim of fraud RICO and that that the the plaintiff does not have claim for for civil conspiracy conspiracy to fraud or civil RICO plaintiff does have a claim commit commit fraud. fraud. In support support of Castle relies upon attorney's affirmation, affirmation, a of the motion, motion, Castle upon an attorney's memorandum copy ofthe of the pleadings. opposes the motion, memorandum of law and a copy pleadings. SR Holdings Holdings opposes motion, relying on an affidavit, affidavits, transcripts transcripts and a decision decision and order order affidavit, an attorney's attorney's affirmation, affirmation, affidavits, checks. The The transferor transferor defendants defendants and the transferee transferee from copies of checks. from a previous previous action action and copies defendants also submitting affirmations affirmations in opposition opposition to Castle's Castle's defendants also opposes opposes the motion, motion, by submitting motion that the cross cross claims claims not be dismissed dismissed even even if the plaintiff's plaintiff's motion to dismiss, dismiss, requesting requesting that claims claims are dismissed. dismissed. Discussion Discussion Practice Law and Rules Rules provides, provides, in relevant relevant part part that, Rule 3211 of the Civil Practice that, party may may move move for judgment dismissing dismissing one one or more more causes causes of action action asserted asserted "[a] party for judgment against on the ground ground that: against [it] on pleading fails state a cause ..."" (7) the pleading fails to state cause of action action ... (N.Y. Civ. Prac. L. & R. 3211 [a] [7]). Under CPLR CPLR 3211 (a)(7), (a)(7), initially initially "[t]he pleading states Under "[t]he sole criterion criterion is whether whether the pleading states a cause cause action, and if from from its four four corners corners factual of action, factual allegations allegations are discerned discerned which which taken taken together together action cognizable cognizable at law .... manifest manifest any cause cause of action ...:"" (see Guggenheimer Guggenheimer v. v. Ginzburg, Ginzburg, 43 [1977]). On a motion motion to dismiss NY2d 268, 275 [1977]). dismiss for for failure failure to state state a cause cause of action, action, the court must must view view the the challenged challenged pleading pleading in the the light light most most favorable favorable to the the non-moving non-moving court determine whether whether the facts facts as alleged alleged fit within within any any cognizable cognizable legal legal theory theory party, and determine 4 4 of 9 [*FILED: 5] WESTCHESTER COUNTY CLERK 07/06/2017 12:51 PM NYSCEF DOC. NO. 169 INDEX NO. 54202/2016 RECEIVED NYSCEF: 07/06/2017 (see Brevtman v O/inville Realty, LLC, 54 AD AD3d 2008]; see also also EBC EBC 1, (seeBrevtman Olin ville Realty, 3d 703 [2d Dept Dept 2008]; 1, Inc. v Goldman, Leon v Martinez, Martinez, 84 NY2d 83 [1994]). Goldman, Sachs Sachs & Co., 5 NY3d 11, [2005]; [2005]; Leon [1994]). taking Thus, a motion CPLR 3211 (a) (7) will not succeed succeed if, taking Thus, motion to dismiss dismiss pursuant pursuant to CPLR all facts affording them them every every possible favorable to the facts alleged alleged as true true and affording possible inference inference favorable nonmoving complaint states states in some some recognizable form any cause cause of action action nonmoving party, the complaint recognizable form known Martinez, supra; supra; Fisher Fisher v DiPietro. DiPietro. 54 AD3d AD3d 892 [2d Dept 2008]; known to law (see Leon Leon v Martinez, Dept 2008]; Moskowitz, Edelman Edelman & Dicker, Dicker, LLP, 38 AD3d AD3d 34, [2d Shava Shava B. Pac., LLC LLC v Wilson. Elser, Moskowitz, Dept. 2006]. dismiss pursuant CPLR 3211 3211(a)(7) denied 2006]. "Indeed, "Indeed, a motion motion to dismiss pursuant to CPLR (a)(7) must must be denied 'unless it has been been shown material fact pleader to be one is not 'unless shown that that a material fact as claimed claimed by the the pleader a fact that no significant significant dispute dispute exists exists regarding regarding it"'. fact at all and unless unless it can be said that it'''. Bokhour GTI Retail Retail Holdings, Holdings, Inc., 94 A.D.3d Bokhour v GT/ A.D.3d 682,683 682, 683 [2d Dept. 2012]). 2012]). With claim that that SR Holdings' With regard regard to Castle's Castle's claim Holdings' pleadings pleadings do not meet meet the 3014, such is denied. denied. The The statements statements in the the amended amended requirements requirements of of CPLR CPLR 3013 3013 and 3014, complaint are sufficiently sufficiently particular particular as to give notice of the the transactions, transactions, complaint give Castle Castle notice occurrences or series series of transactions intended to be proved proved and the occurrences transactions or occurrences, occurrences, intended material elements elements of each each cause material cause of action action or defense. defense. The The Court Court also also finds finds the the statements statements concise, in numbered numbered paragraphs paragraphs and each each contains, contains, as far far as to be sufficiently sufficiently concise, practicable, a single single allegation, allegation, in compliance compliance with CPLR CPLR 3014. 3014. practicable, With regard to any negligence negligence claim, "a title hired by one party is not, title company company hired one party With regard fraud, collusion collusion or other other special special circumstances, circumstances, subject subject to suit suit for for absent absent evidence evidence of fraud, negligent performance performance by one one other other than than the theparty who contracted contracted for for its services" services" (see (see negligent party who Velazquez Velazquez v Oeccwdin, DecC!udin, 49 AD3d AD3d 712 [2d Dept Dept 2008]). 2008]). Here, although although there there is_ is no allegation allegation 5 5 of 9 [*FILED: 6] WESTCHESTER COUNTY CLERK 07/06/2017 12:51 PM NYSCEF DOC. NO. 169 INDEX NO. 54202/2016 RECEIVED NYSCEF: 07/06/2017 that SR Holdings· Holdings had any any relationship relationship or contact contact with with Castle, Castle, "[o]ne U[o]ne who who aids aids and abets abets a that breach of of a fiduciary fiduciary duty duty is liable liable for for that that breach breach as well, well, even even if he or she had no breach independent fiduciary fiduciary obligation obligation to the the allegedly allegedly injured injured party, party, if the the alleged alleged aider aider and independent abettor rendered rendered 'substantial 'substantial assistance' assistance' to the the fiduciary fiduciary in the the course course of of effe_cting effecting the the abettor alleged breaches breaches of of duty" duty" (Id.). (/d.). The The plaintiff plaintiff alleges alleges fraud fraud and collusion collusion and that that Castle Castle alleged aided and abet abet in a breach breach of of a fiduciary fiduciary duty, duty, therefore, therefore, affording affording the the plaintiff plaintiff every every aided possible favorable favorable inference, inference, the the Court Court denies denies the the motion motion as it pertains pertains to any any negligence negligence possible claims. claims. Castle also also argues argues that that the the plaintiff plaintiff failed failed to plead plead a cause cause of of action action for for fraud fraud with Castle sufficient particularity particularity and that that the the plaintiff plaintiff is unable unable to establish establish all of of the the elements elements of of sufficient fraud. The The elements elements of of a cause cause of of action action for for fraud fraud require require a material material misrepresentation misrepresentation of of fraud. fact, knowledge knowledge of of its falsity, falsity, an intent intent to induce induce reliance, reliance, justifiable reliance by the a fact, justifiable reliance plaintiff and damages damages ( see see Ross Ross v Louise Louise Wise Servs., Servs., Inc., 8 NY3d NY3d 478, 478, 488 488 [2007]; [2007]; plaintiff Lama Holding Holding Co. v. v. Smith Smith Barney, Barney, 88 NY2d NY2d 413, 413,421 [1996]). Additionally, Additionally, a claim claim rooted rooted Lama 421 [19961). fraud must must be pleaded pleaded with the the requisite requisite particularity particularity under under CPLR CPLR 3016 3016 (seeEurycleia (see Eurycleia in fraud Partners, LP LP v Seward Seward & Kissel, Kissel, LLP, LLP, 12 NY3d NY3d 553, 559 [20091). [2009]). CPLR CPLR 3016(b) 3016(b) requires requires Partners, that "[w]here U[w]here a cause cause of of action action is based based upon upon misrepresentation, misrepresentation, fraud, fraud, mistake, mistake, willful willful that deceit, breach breach of of trust, trust, or undue undue influence, influence, the the circumstances circumstances constituting constituting the the wrong wrong s~all shall deceit, stated in detail." detail." (Id.). (/d.). be stated Debtor and Creditor Creditor Law§ Law 9276 provides that that "[e]very U[e]veryconveyance made ... ...with actual Debtor 276 provides conveyance made with actual intent...to hinder, hinder, delay, delay, or defraud defraud either either present present or future future creditors, creditors, is fraudulent" fraudulent" (Stout (Stout intent...to Street Fund/, Fund I, L.P. v Halifax Halifax Group, Group, LLC, 148 AD3d AD3d 744 744 [2d Dept Dept2017]). "The requisite requisite 20171). "The Street 6 6 of 9 [*FILED: 7] WESTCHESTER COUNTY CLERK 07/06/2017 12:51 PM NYSCEF DOC. NO. 169 INDEX NO. 54202/2016 RECEIVED NYSCEF: 07/06/2017 intent required required by this need not be proven proven by direct but may may be inferred inferred intent this section section need direct evidence, evidence, but from the circumstances circumstances surrounding surrounding the allegedly from allegedly fraudulent fraudulent transfer" transfer" (Id.). (/d.). The The court court in its determination, may may consider consider "badges "badges of fraud" fraud" or "circumstances "circumstances that that accompany accompany determination, fraudulent transfers transfers so commonly presence gives inference of intent" intent" fraudulent commonly that that their their presence gives rise to an inference (Id.). "These "These badges badges offraud include lack or inadequacy inadequacy of consideration, (/d.). of fraud include consideration, family, family, friendship friendship close associate associate relationship relationship between between transferor retention or close transferor and transferee, transferee, the debtor's debtor's retention possession, benefit, benefit, or use of the property property in question, pattern or of possession, question, the existence existence of a pattern series of transactions incurring of debt, transactions or course course of conduct conduct after after the incurring debt, and the transferor's. transferor's series knowledge of the creditor's creditor's claim inability to pay it" (see Steinberg v Levine, knowledge claim and the inability (see Steinberg Levine, 6 AD 3d 620 [2d Dept Dept 2004]). 2004]). despite Castle's Castle's contention, contention, it is this Court's plaintiff has set Here, despite Court's finding finding that that the plaintiff forth and alleged alleged sufficient sufficient badges badges of fraud inference of intent. intent. There forth fraud to give give rise to an inference There exists a pattern pattern or series series of of transactions transactions or course incurring of the debt exists course of conduct conduct after after the incurring debt and a lack lack of consideration. consideration. Further, Further, "the heightened heightened pleading pleading requirements requirements of CPLR CPLR 3016(b) may met when light of the may be met when the material material facts facts alleged alleged in the complaint, complaint, in light 3016(b) surrounding circumstances, circumstances, 'are sufficient permit a reasonable reasonable inference inference of surrounding sufficient to permit of the alleged alleged conduct' including including the adverse adverse party's party's knowledge knowledge of, or participation participation in, the conduct' the fraudulent fraudulent scheme" (see (see House of Spices Spices (India), Inc. v SMJ SMJ Servs., Inc., 103 AD3D Dept scheme" House of AD3D 848 [2d Dept 2013]. The The allegation that Castle Castle conspired allegation that conspired with the other other defendants defendants gives gives rise to a 2013]. reasonable inference inference that that Castle intended to aid in the reasonable Castle was was aware aware of a fraud fraud and intended the commission of the fraud. fraud. (Id.). is'8a motion motion to dismiss commission (/d.). Additionally, Additionally, since since this this is dismiss and not a summary judgment motion, the Court liberal construction, summary judgment motion, Court affords affords the complaint complaint a liberal construction, accepting accepting 7 7 of 9 [*FILED: 8] WESTCHESTER COUNTY CLERK 07/06/2017 12:51 PM NYSCEF DOC. NO. 169 INDEX NO. 54202/2016 RECEIVED NYSCEF: 07/06/2017 facts as alleged alleged in the the complaint complaint as true true and accords accords the the plaintiff plaintiff the the benefit benefit of of every every all facts AD3d 878 possible favorable inference (see (see Lissauerv Lissauer v Guideone Guideone Specialty Specialty Mut. Ins., 109 AD3d favorable inference possible [2d Dept Dept 2013]). 2013]). Therefore, Therefore, the the Court Court denies denies dismissal dismissal based based on fraud. fraud. fraud is never With regard to conspiracy conspiracy to .commit commit fraud, "conspiracy to commit commit a fraud never fraud, "conspiracy With regard "While a 2003]). "While of itself itself a cause cause of of action" action" (Agostini (Agostini v Sobol, Sobol, 304 304 AD2d AD2d 395 [1st Dept Dept 2003]). of plaintiff may may allege, allege, in a claim claim of fraud fraud or other other tort, that that parties parties conspired, conspired, the the conspiracy conspiracy plaintiff to commit itself, a cause cause of Hoeffner v Orrick, Herrington Herrington & action Hoeffner of action of itself, tort is not, of fraud or tort commit a fraud Sutcliffe LLP, LLP, 85 AD 3d 457 457 [1st [1st Dept Dept 2011]). 2011]). Therefore, Therefore, any any independent independent civil conspiracy conspiracy AD3d Sutcliffe fraud (Id.). claim is dismissed dismissed and exists exists only only within plaintiff's claims claims of of fraud (Id.). the plaintiff's withi.n the claim Castle also also seeks seeks dismissal dismissal of of the the plaintiff's plaintiff's RICO RICO claim. claim. To To establish establish a RICO RICO claim, claim, Castle plaintiff must must show: show: "(1) a violation of the RICO statute, statute, 18 U.S.C. U.S.C. § ~ 1962; 1962; (2) an injury injury the RICO violation of a plaintiff business or property;· property;' and (3) that that the injury injury was was caused caused by the the violation violation of of Section Section to business 1962." (DeFalco (DeFalco v Bem~s. Bernas, 244 244 F3d 286, 306 306 [2d Cir. 2001]). 2001]). "'Racketeering "'Racketeering activity" activity" is 1962." inter alia, offenses including, broadly defined including, inter federal offenses state and federal of state variety of encompass a variety defined to encompass broadly murder, kidnapping, kidnapping, gambling, gambling, arson, arson, robbery, robbery, bribery bribery and extortion.' extortion.' (Id.) (Id.) "A 'pattern 'pattern of murder, which one of which racketeering activity' activity' requires requires at least least two acts of of racketeering racketeering activity, activity, one two acts racketeering occurred after after the the effective effective date date of of [the] [the] chapter chapter [October [October 15, 1970] 1970] and the the last last of of which which occurred occurred within ...afterthe commission of of a prior prior act act of of racketeering racketeering activity." activity." (Id.). (Id.). after the commission years ... ten years within ten occurred Plaintiff's alleges alleges that that Castle Castle engaged engaged in mail and/or and/or wire wire fraud fraud and perjury perjury in its Plaintiff's conspiracy to defraud defraud the the plaintiff. plaintiff. However, However, "[b]ecause "[b]ecause the the core core of of a RICO RICO civil conspiracy conspiracy conspiracy very the very agreement to cqmmit cqmmit predicate predicate acts, a RICO RICO civil conspiracy conspiracy complaint, complaint, at the is an agreement must allege allege specifically specifically such such an agreement" agreement" (see Housf! HOUSE;of of Spices Spices (India), Inc. v SMJ SMJ least, must 8 8 of 9 [*FILED: 9] WESTCHESTER COUNTY CLERK 07/06/2017 12:51 PM NYSCEF DOC. NO. 169 ~ ~ ..•. INDEX NO. 54202/2016 RECEIVED NYSCEF: 07/06/2017 ;, '• Servs., Inc., 103 AD3D 2013]. Here, there AD3D 848 [2d Dept Dept 2013]. there is no such such allegation allegation of a conscious Castle's motion claim, is conscious agreement. agreement. Therefore, Therefore, Castle's motion to dismiss dismiss the plaintiff's plaintiff's RICO claim, granted. granted. The Castle's motion cross claims claims against The Court Court denies denies Castle's motion to dismiss dismiss the c"ross against it. it. Castle Castle provided dismiss the cross submitted an argument argument provided no basis basis to dismiss cross claims claims in its motion motion and only only submitted therefore, the crossin its reply reply papers. papers. The The Court Court did not dismiss dismiss all of Castle's Castle's claims claims and therefore, crossclaims the coclaims will stand. stand. Further, Further, common common law indemnification, indemnification, which which is being being claimed claimed by the defendants, enlarged in the bill of defendants, need need not be pied pled with particularity particularity and may may be enlarged particulars. challenged pleading favorable to the non-moving particulars. Viewing Viewing the challenged pleading in the light light most most favorable non-moving party, Brevtman v Olinville party, the facts facts as alleged alleged fit within within a cognizable cognizable legal theory theory (see Brevtman Olinville EBC 1, Realty, Realty, LLC, 54 AD3d AQ3d 703 703 [2d Dept Dept 2008]; 2008]; see also also EBC 1, Inc. v Goldman, Goldman, Sachs Sachs & Co., [2005]; Leon Martinez, 84 NY2d 83 [[1994]). 5 NY3d 11, [2005]; Leon v Martinez, 1994]). The The parties parties are directed directed to appear appear before before the Preliminary Preliminary Conference Conference Part on relief requested August 7 at 9:30 am in Courtroom August Courtroom 811. To the extent extent any relief requested in motion motion sequence denied. sequence 2 was was not addressed addressed by the Court, Court, it is hereby hereby deemed deemed denied. The shall constitute The foregoing foregoing shall constitute the decision decision and order order of the the Court. Court. Dated: York Dated: White White Plains, Plains, New New York June 30, 2017 2017 June HON. SAM D. WALKER, WALKER, J.S.C J.S.C... 9 9 of 9

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