Dragon Head LLC v Elkman

Dragon Head LLC v Elkman 2013 NY Slip Op 00289 Decided on January 22, 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 January 22, 2013
Friedman, J.P., Renwick, Manzanet-Daniels, Román, Clark, JJ.
9047 650192/12

[*1]Dragon Head LLC, Plaintiff-Appellant,

v

Steven Munro Elkman, et al., Defendants, Deutsche Bank, Alex Brown, etc., Defendant-Respondent.




Russ & Russ, P.C., Massapequa (Jay Edmond Russ of
counsel), for appellant.
Murphy & McGonigle, P.C., New York (Theodore R. Snyder
of counsel), for respondent.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered June 14, 2012, which granted defendant Deutsche Bank, Alex Brown, a Division of Deutsche Bank Securities, Inc.'s motion to dismiss the complaint as against it, and denied plaintiff's cross motion to amend the complaint, unanimously affirmed, without costs.

Plaintiff's allegations against Deutsche Bank are not entitled to be deemed true, since they consist of bare legal conclusions and factual assertions that are flatly contradicted by the documentary evidence showing that Deutsche Bank was not a party to the written agreements at issue (see Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept 1999], affd 94 NY2d 659 [2000]). In support of its noncontractual causes of action, plaintiff does not sufficiently allege, nor do the evidentiary submissions show, that any relationship, contractual, fiduciary, or otherwise, existed between it and Deutsche Bank, or that Deutsche Bank possessed or exercised control over any of the property at issue (see e.g. Roslyn Union Free School Dist. v Barkan, 16 NY3d 643, 653 [2011]; Colavito v New York Organ Donor Network, Inc., 8 NY3d 43 [2006]; Bradkin v Leverton, 26 NY2d 192, 199 n 4 [1970]; Georgia Malone & Co., Inc. v Rieder, [*2]86 AD3d 406, 408 [1st Dept 2011], affd 19 NY3d 511 [2012]; Kopelowitz & Co., Inc. v Mann, 83 AD3d 793, 798 [2nd Dept 2011]).

Plaintiff failed to submit a proposed amended pleading with his motion for leave to amend the complaint (see CPLR 3025[b]).

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

ENTERED: JANUARY 22, 2013

CLERK