SR Holdings I, LLC v Cannavo

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SR Holdings I, LLC v Cannavo 2017 NY Slip Op 33372(U) December 29, 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 01/08/2018 12:05 PM NYSCEF DOC. NO. 254 INDEX NO. 54202/2016 RECEIVED NYSCEF: 01/08/2018 To commence the statutory time for appeals as of right 5513[a]), you are (CPLR 5513[a]), advised to serve a copy of this order, with notice entry, upon all parties. parties. of entry, SUPREME COURT COURT OF THE STATE STATE OF NEW NEW YORK SUPREME YORK COUNTY OF WESTCHESTER WESTCHESTER --COUNTY PRESENT: HON. SAM SAM D. WALKER WALKER, , J.S.C. J.S.C. PRESENT: ------------------------------------------------------------------------------x ------------------------------------------------------------------------------x HOLDINGS I, LLC SR HOLDINGS DECISION & ORDER ORDER DECISION Plaintiff, Plaintiff, Index No. 54202/2016 54202/2016 Index Seq # 3 & 4 Seq# -against-againstJOSEPH CANNAVO, CANNAVO, LEONARD LEONARD CANNAVO, CANNAVO, CARMELA CARMELA JOSEPH CANNAVO, IRVING IRVING PLACE PLACE PROPERTIES, PROPERTIES, 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 BLUE WASHINGTON PARK PROPERTIES LLC, BLUE 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 NATIONAL BANK, BANK, RED SOX SOX FUNDING FUNDING LLC, STERLING 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 CONSULTING SERVICES LLC, CREATIVE CREATIVE SCAPES SCAPES MANAGEMENT MANAGEMENT SERVICES SINGER ENERGY ENERGY GROUP GROUP LLC, SHANA SHANA SIMMONS, SIMMONS, LLC, SINGER NEW YORK STATE DEPARTMENT DEPARTMENT OF TAXATION TAXATION & NEW YORK STATE FINANCE, JOHN JOHN DOE #1 through through JOHN JOHN DOE #15 #15 FINANCE, INCLUSIVE, INCLUSIVE, Defendant. Defendant. ______________________________________________________ ------------------------x ------------------------------------------------------------------------------x The following following papers papers were considered on the motions motions seeking seeking dismissal dismissal of the The were considered complaint: complaint: A-C Notice Notice of of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-C Memorandum of Law in Support Support Memorandum A-D Affirmation/Affidavit in Opposition/Exhibits Affirmation/Affidavit Opposition/Exhibits A-D Memorandum of Law Law in Opposition Opposition Memorandum Reply Affirmation Reply Affirmation 1 of 5 1-5 1-5 6 7-11 12 13 [*FILED: 2] WESTCHESTER COUNTY CLERK 01/08/2018 12:05 PM NYSCEF DOC. NO. 254 INDEX NO. 54202/2016 RECEIVED NYSCEF: 01/08/2018 Notice of of Motion/ Motion/Affidavit/Exhibits A-C Notice Affidavit/Exhibits A-C Affidavit in Opposition/Exhibits Opposition/Exhibits A-D A-D Affidavit Memorandum of of Law Law in Opposition Opposition Memorandum Reply Affirmation/Exhibit Affirmation/Exhibit A Reply 14-18 14-18 19-23 19-23 24 25-26 25-26 Based upon upon the the foregoing foregoing the the motions motions are GRANTED. GRANTED. Based The plaintiff plaintiff commenced commenced this action action on April April 1, 2016, 2016, to recover recover on deficiency deficiency The judgments against the named named defendants defendants from from two two previously previously filed foreclosure foreclosure actions. actions. The The judgments against plaintiff filed filed an amended amended complaint complaint on November November 14, 2016. 2016. The The plaintiff plaintiff states states that that on or plaintiff about September September 24, 2012, 2012, a judgment was entered entered in its favor favor in the the amount amount of of about judgment was $2,836,459.42 and on or about about January January 7, 7,2013, another judgment was entered entered in its favor favor $2,836,459.42 2013, another judgment was second action action in the the amount amount of of $1,618,929.82. $1,618,929.82. The The plaintiff plaintiff alleges alleges that that both in a second judgments remain wholly wholly unsatisfied unsatisfied and seeks, seeks, inter inter alia, to set set aside aside alleged alleged fraudulent fraudulent judgments remain conveyances of of various various properties properties without without fair fair consideration consideration in an attempt attempt to avoid avoid conveyances payment on the the judgments; recover payment payment on the the deficiency deficiency judgments. payment judgments; and to recover judgments. The amended amended complaint complaint alleges alleges causes causes of acti,on acti.on for for civil conspiracy conspiracy and RICO The violations. This This Court Court previously previously granted granted Castle Castle Title Title Order Order motion motion to dismiss dismiss civil violations. conspiracy and RICO RICO causes causes of of action. action. The The defendants, defendants, Joseph Joseph Cannavo Cannavo and Leonard Leonard conspiracy Cannavo, now now file this this motion, motion, pursuant pursuant to CPLR CPLR 3211 (a)(7}, (a)(7), to dismiss dismiss the the plaintiff's plaintiff's civil Cannavo, conspiracy and RICO RICO claims. claims. The The defendants, defendants, Irving Irving Place Place Properties Properties LLC, One One Way Way conspiracy Properties LLC, Putnam Putnam Park Park Properties Properties LLC, Regent Regent Street Street Properties Properties LLC, Washington Washington Properties Properties LLC, and Haseco Haseco Properties Properties LLC (the "transferor "transferor defendants") defendants") also also now now Park Properties motion to dismiss, dismiss, pursuant pursuant to CPLR (a)(7), to dismiss dismiss the civil conspiracy conspiracy and file a motion CPLR 3211 (a)(7), RICO causes causes of action. RICO action. 2 2 of 5 [*FILED: 3] WESTCHESTER COUNTY CLERK 01/08/2018 12:05 PM NYSCEF DOC. NO. 254 INDEX NO. 54202/2016 RECEIVED NYSCEF: 01/08/2018 The defendants defendants assert assert that that New New York York does does not recognize recognize an independent independent tort tort of The conspiracy and such such a claim claim stands stands or falls falls with the the underlying underlying tort. The The defendants defendants civil conspiracy argue that that the the core core of of a RICO RICO civil conspiracy conspiracy is an agreement agreement to commit commit predicc;1te predic~te also argue that a RICO RICO civil conspiracy conspiracy complaint complaint must must specifically specifically allege allege such such an acts and that agreement. The The defendants defendants argue argue that that the the plaintiff's plaintiff's amended amended complaint complaint fails fails to allege allege a agreement. conscious agreement agreement between between and amongst amongst the the defendants defendants and and therefore, therefore, must must be conscious dismissed as a matter matter of of law. dismissed support of of the the both both motions, motions, the the defendants defendants rely upon upon their their attorneys' attorneys' affirmations affirmations In support affidavit, memoranda memoranda of of law and a copies copies of of the the pleadings. pleadings. SR Holdings Holdings oppose~ opposes the the or affidavit, motions, relying relying on affidavits, affidavits, attorney's attorney's affidavits, affidavits, transfer transfer documents documents .and memoranda memoranda motions, of law. of Discussion Discussion Rule 3211 of of the the Civil Practice Practice Law Law and Rules Rules provides, provides, in relevant relevant part part that, that, Rule U[a] party party may may move move for for judgment dismissing one one or more more causes causes of of action action asserted asserted judgment dismissing "[a] against [it] on the the ground ground that: that: against the pleading pleading fails fails to state state a cause cause of of action action ... ..."" (7) the 3211 [aU7]). (N.Y. Civ. Prac. L. & R. 3211[al [7]). Under CPLR CPLR 3211 (a}(7); (a)(7), initially initially "[t]he "[t]he sole sole criterion criterion is whether whether the the pleading pleading states states a cause cause Under action, and iffrom if from its four four corners corners factual factual allegations allegations are discerned discerned which which taken taken together together of action, manifest any any cause cause of of action action cognizable cognizable at law .... ....•• Guggenheimer v. v. Ginzburg, Ginzburg, 43 " (see Guggenheimer manifest 275 [1977]). [1977]). On a motion motion to dismiss dismiss for for failure failure to state state a cause cause of of action, action, the the NY2d 268, 275 court must view view the challenged challenged pleading pleading in the light most most favorable non-moving court must favorable to the non-moving determine whether whether the facts party, and determine facts as alleged alleged fit within within any cognizable cognizable legal theory theory 3 3 of 5 I,:--;::========================~==::!!,_______________________ INDEX NO. 54202/2016 [*FILED: 4] WESTCHESTER COUNTY CLERK 01/08/2018 12:05 PM NYSCEF DOC. NO. 254 RECEIVED NYSCEF: 01/08/2018 (see AD3d 703 [2d Dept (see Brevtman Brevtman v Olinville Olinville Realty, Realty, LLC, 54 AD3d Dept 2008]; 2008]; see see also also EBC EBC 1, 1, Inc. Leon v Martinez, v Goldman, Goldman, Sachs Sachs & Co., 5 NY3d 11, [2005]; [2005]; Leon Martinez, 84 NY2d 83 [1994]). [1994]). In this Court's stated that, "conspiracy to commit Court's prior prior Decision Decision and Order, Order, the Court Court stated that, "conspiracy commit a fraud of itself AD2d 395 fraud is never never of itself a cause cause of action" action" (Agostini (Agostini v Sobol, Sobol, 304 AD2d 395 [1st Dept Dept 2003]) 2003]) and dismissed dismissed the civil conspiracy conspiracy claims claims against against Castle Castle Title Title Order. Order. For the the same same reason, reason, the Court Court now now dismisses dismisses the civil conspiracy conspiracy claims claims against against Joseph Joseph and Leonard Leonard Cannavo defendants. "While Cannavo and the transferor transferor defendants. "While a plaintiff plaintiff may may allege, allege, in a claim claim of fraud fraud or other that parties other tort, that parties conspired, conspired, the conspiracy conspiracy to commit commit a fraud fraud or tort tort is not, of itself, action (see AD3d 457 a cause cause of action (see Hoeffner Hoeffner v Orrick, Herrington Herrington & Sutcliffe Sutcliffe LLP, 85 AD3d 457 [1st Dept ]). Therefore, Dept 2011 2011]). Therefore, the Court Court dismisses dismisses the independent independent civil conspiracy conspiracy claims. claims. With regard to the With regard the RICO claims, claims, the core core of a RICO RICO civil conspiracy conspiracy is an agreement agreement to commit commit predicate predicate acts. Therefore, Therefore, a RICO RICO civil conspiracy conspiracy complaint, complaint, at the very very least, must specifically such (see House must allege allege specifically such an agreement" agreement"(see House of of Spices Spices (India), Inc. v SMJ SMJ Servs., AD3D 848 [2d Dept such allegation Servs., Inc., 103 AD3D Dept 2013]. 2013]. Here, there there is no such allegation of a conscious Additionally, as a necessary show proof conscious agreement. agreement. Additionally, necessary element, element, the plaintiff plaintiff must must show proof "pattern of of racketeering racketeering activity", activity", which which requires requires at least least two two acts of racketeering racketeering of a "pattern predicates that that are related related and amount amount to or threaten threaten the likelihood likelihood of continued continued criminal criminal predicates activity activity (see (see H.J. Inc. v Northwestern Northwestern Bell Bell Telephone Telephone Co., 492 492 US 229 229 [1989]). [1989]). Here, the amended complaint complaint also fails fails to satisfy satisfy the continuity continuity element element of a RICO RICO cause cause of action, action, amended since it does does not allege allege facts facts to support support an inference inference of a threat threat of continuing continuing criminal criminal since activity. Therefore, Therefore, the defendants' defendants' motions motions to dismiss dismiss the plaintiff's plaintiff's RICO RICO claims, claims, are activity. granted. granted. 4 of 5 4 [*FILED: 5] WESTCHESTER COUNTY CLERK 01/08/2018 12:05 PM NYSCEF DOC. NO. 254 INDEX NO. 54202/2016 RECEIVED NYSCEF: 01/08/2018 Accordingly, it is Accordingly, ORDERED that that Joseph Joseph Cannavo Cannavo and Leonard Leonard Cannavo's Cannavo's motion motion to dismiss dismiss the the civil ORDERED conspiracy and RICO RICO causes causes of of action, action, is granted; granted; and it is further further conspiracy ORDERED that that the the defendants, defendants, Irving Place Place Properties Properties LLC, One One Way Way Properties Properties ORDERED Putnam Park Park Properties Properties LLC, Regent Regent Street Street Properties Properties LLC, Washington Washington Park LLC, Putnam Properties LLC, and Haseco Haseco Properties Properties LLC's LLC's motion motion to dismiss dismiss the the civil conspiracy conspiracy and Properties RICO causes causes of of action, action, is granted. granted. RICO The foregoing foregoing shall shall constitute constitute the the Decision Decision and Order Order of of the the Court. Court. The Dated: White White Plains, Plains, New New York York Dated: December 29, 2017 2017 December ~~.~ SAM D. WALKER, WALKER, J.S.C. J.S.C. HON. SAM 5 5 of 5

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