Evans v Rosen

Evans v Rosen 2013 NY Slip Op 07433 Decided on November 12, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 12, 2013
Andrias, J.P., Acosta, Saxe, Renwick, Manzanet-Daniels, JJ.
11032 602898/05

[*1]Martin Evans, as Guardian of the Property of Shari Perl, etc., et al., Plaintiffs-Appellants,

v

Stephen H. Rosen, et al., Defendants, Dean Palin, et al., Defendants-Respondents, Rebecca Perl, etc., et al., Nominal Defendants.




Bressler, Amery & Ross, P.C., New York (David H. Pikus of
counsel), for appellants.
Law Office of Donovan Wickline, P.C., Brooklyn Heights
(Donovan L. Wickline of counsel), for respondents.

Order, Supreme Court, New York County (Judith J. Gische, J.), entered July 11, 2011, which, insofar as appealed from, granted the motion of defendants Dean Palin and 32 West 22nd Street LLC, to dismiss the fourth amended and supplemental complaint as against them, unanimously affirmed, without costs.

In this action alleging, inter alia, the misappropriation of real estate interests by defendant Shallo, the real estate broker for the subject properties, the court properly determined that the facts as pleaded against defendants Palin and 32 West 22nd Street LLC did not state a cause of action against them (see CPLR 3211[a][7]). In the absence of a confidential or fiduciary relationship, plaintiffs have no cause of action for imposition of a constructive trust against them (cf. Sharp v Kosmalski, 40 NY2d 119, 121 [1976]).

As to the claim that Palin aided and abetted Shallo's breach of fiduciary duties when he and Shallo, as members of 32 West 22nd Street LLC, purchased one of the properties, there were no allegations that Palin knowingly participated in the breach or provided "substantial assistance" to Shallo (Kaufman v Cohen, 307 AD2d 113, 124-125 [1st Dept 2003]). As the motion court found, at most, the complaint alleges that Palin negotiated the purchase, knew that Shallo was an investor on the buyer side and that Shallo was a broker for the seller (compare [*2]Yuko Ito v Suzuki, 57 AD3d 205 [1st Dept 2008].

We have considered plaintiffs' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 12, 2013

CLERK