Greene v Ratner

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Greene v Ratner 2008 NY Slip Op 32075(U) July 22, 2008 Supreme Court, New York County Docket Number: 0601545/2007 Judge: Herman Cahn Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1 ] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: Co-\nn PART ~ 4 - Number 601 54512007 ' I GREENE, EUGENE INDEX N O . 1 VS RATNER, BRUCE 1 MOTION DATE 11 SEQUENCE NUMBER : - l MOTION SEQ. II 001 l DISMISS COMPLAINT NO. MOTION CAL. NO s motion to/for I Notice of Motion/ Order t o Show Cause Answering Affidavits Replying Affidavits - Exhibits -- - Affidavits - Exhibits -_ ...I I ... _ - . -- Cross-Motion: - PAPERS NUMBERED - - . Yes i No Upon the foregoing papers, it is ordered that this motion MOTION 1 DECIDED fbd ACCORDANCE s W I T H ACCOMPANYfNG MEMORANDUM ECISION INM o n o N SEQUENCE II C FINAL DISPOSITION ck one: %eck If appropriate: ' - 1 DO NOT POST - NON-FINAL DlSPOSlTlON [* 2 ] STJPREME COURT OF THE STATE OF N E W YOKK COUNTY OF N E W YOKK: 1AS PART 49 _______-___-____________________________-----------------------------X E JGENE GREENE, T Plaintil'f, Index No. 601 545/07 -againslBRUCE KA'l'NER, IWKES'I' CJ'I'Y KAI'NER COMPANIES, FCR SPORTS, LLC and BROOKLYN BASKETHALI,, I.I.C, D e l e d ants. TI services in finding investors and raising funds for defendants' purchase of tlic New Jersey Ncts National Basketball Association franchise (the Nets or Team) and development of thc Atlantic Yards Real Eslate Development Project in Brooklyn, New York (the Atlantic Yards project). Ocfcndants inovc to dismiss the complaint, CPLR 321 1 (a) ( I ), ( 5 ) and (7). BACKGROUND The complaint contains allegations that Greeiie is a successful businessman and entrepreneur with many years of illvesting aiid busiiicss experience. Over tlic ycars, he has established, and continues to maintain, an extensive network of busincss and Gnancial relationships. tkfcndant Hrucc Katncr is thc presidcnt and Chief Executive Officcr of defendant Forcst City Ratner Companies (Forest City), a real estate development aiid inveslment firm. Forcst City i s tlic parent company of dcfcndaiits FCIi Sports, I L C and Brooklyn Basketball, LLC, two holding coinpanics tlirougli whjcli Katiicr allcgcdly directs his investments in the Nets franchise and the Atlantic Yards project. [* 3 ] Greene alleges that he was tirst introduced to Itatner in September of 2003, by a mutual hiend who kiicw that (jrcciic was interested in becoming an owner and participant in the operation o f a National Rasltetball Association (NBA) team and that Ratner was seeking to raise money to piirchase the Nets and develop the Atlantic Yards project. LJpon tlicir introduclion, Katncr allegedly explained lo Greene that hc was in the niidsl olbidding on the Nets and developirig tlic Atlantic Yards project and was scckiiig to raise money from outside investors for hotli pmjccts. Ratner allegedly solicited Grccnc s involvement in this cndeavor, knowing that Greenc: was cxpcrienced in raising limds; had extensive business contacts, iiicluding significant contacts with the Net s then-cxisting investors; and was well connccted lo other high-net-worth iiidividuals who might he interested in investing in del endants coiitciiiplatcd business venturcs, In ordcr to induce Greene LO invest in and use his contacts and fund-raising ability h r tlic benefit of tlicsc prqjccts, Itatner allegedly made Greeuc a scrics oI promises and representations of ever-increasing prerequisitcs. Specifically, Greene alleges that Katiicr promised that hc would he I : key person in running thc Team (Compl., 7 17), and that he woiild be given prcfcrrcd investment slatus and would become a mcrnber ol lhe Team s three-person Board of Chvernurs (a, 7 22). Greene alleges h a t , as a quid p r o quo for tlicse promises and inducements, in Noveinher 2003, Ratner deninndcd that (l;rccne execute and liind a subscription agreement by which Greene would invcst a total ol 6,000,000 in tlic Nets and Atlanlic Yards pro-jccts. The docitinciitary evidcncc rctlccts that a subscription agi.eenicnt was executed by EG Group ILC, a Greene I {ntity, arid Brooklyn Raskctball, a Itatner entity, on Novciiibcr 7, 2003 ( g Greenc Aff., Exh. B). Greene alleges that, since he at all times, sought an active participatory role in the 2 [* 4 ] inanagenient and affairs ol the Team, . . . [lit] conditioned his investment accordingly (Co111pl I - 7 3 1). Ihus, at Greene s insistence, EG Group was provided with an additional letter agreement signed by Brooklyn Basketball (thc Benefits Letter), promising that a mernbcr of EG Group would scrvc as a meinber on scvcral boards associated with the I earn (a, Spccifically, 1 32). 1 the Benefits Letter, captioned cjoveriiancc Terms relating to Brooklyn Baskelball, LLC, and also executed on November 7, 2003, provides that: [tlhis is to codinn our understanding with rcspect to certain governance terms of Brooklyn Basketball, LLC or whichever entity acquires the New Jersey Nets National Basketball Association Iranchise and related asscts (thc Company ) as well as your role on behalf of the Company. We have agreed to include in thc h a 1 operating agreement of the Company provisions for the right of EG Group LLC to (i) desigiiatc a mcmbcr to the Board of Directors or Managers of the Company; (ii) designate a member to the Basketball Operations Committee of the Company; and (iii) designatc an alternate governor representing thc Nets Basketball franchise on thc NBA Hoard of crovernors (Compl., 7 33; Greene AU., Exh. A). Greene alleges that [his] agreement to f w d and assist Ilatner was coiiditioned upon Iiatncr s providing to Greene the Novenibcr 7, 2003 lettcr and, in addition tlicrcto, appointing Greene to the Team s Board o l Governors, which appointment would expand Grecne s business and financial contacts and would enable Grccne to interact with other high-worth investors, a position that held out for Greene the opportunity for further and ever-increasing business and financial gain (Conipl., 1 34). 1 Following presenlriient o l the BeneGts Letter, Grccnc alleges that hc was pressured continuously by Ratner and his representatives to continue his fund-raising el l orts for the Nets and the Atlantic Yards projcct. Io furthcr induce him to provide these services, Ratncr at various 3 [* 5 ] times promised Greeiie that [y]ou will be the glue that hclps run this team (&- 7 39), and that [ Y ] ~ U are going t o be on the highest level committee with me (d, 40). Grecne allegcs that, at 7 based 011 thcse repeated proiiiises and inducements, he had a reasonable expectation that he would be well compensated for his efforts and engaged in round tlic clock el l orts to solicit investors ( d 41). i7 , The complaint contains allegations that, between Scptcm ber 2003 and May 2006, Grccnc solicited potential investors to consider investing in the I cani and Atlantic Yards project, eventually raising over $3 1,000,000. Greene further alleges that his actjvitics [or defendants were not limited to hnd-raising, but that he also worked with and amongst the various disparate scllers ofthe Teain in an effort to sccurc a univcrsal acceptance of Ratner as a buyer ol the Team, to promote Ratner and influence sellers, who were holdouts in a proposed sale of the benefits that a salc to Ratner would bring (&I addition, Greene alleges that he arranged a meeting between Ratncr and David 46). In Gerstein, a close friend of Greene s, who represented a group of investors and was, himself, a significant investor and former majority owner of the Team. Ratner allcgcdly c o n h m e d to Gcrstcin that Greene would have a key role in the Team s organization (d, 7 48). Finally, Greene alleges that, at Ratncr s rcqucst, lic went to Pliiladclphia to meet with Lewis Katz, the Nets s then-primary owiicr, to assist Ratner in his efforts to convince Katz to sell the Team to Ratner (&,TI 49-S0).2 1 According to the complaint, Grccnc raiscd this money as i ollows: $1 1,100,000 from Longwing Brooklyn Rcal Estatc Partners, I K , and $20,000,000 from 50 Hoops, LLC: ( d 5 3 ) . i7 , Although not allcgcd in the complaint, the Court takcs judicial note of the fact that Ratiicr ultimatcly succeeded in purchasing the Nets for $300,000,000 in January of 2004, an event that received extcnsivc mcdia covcrage i n New York City. 4 [* 6 ] However, whcn thc members of the Nct s Board of Governors were announced at the cnd of 3004, Greene was not among them (d, 7 56). At that time, Greene alleges, he also r e a h c d that Ratrier was not going to properly compensate him lor his cfforts in raising funds ( d , i1 60). . 1 Ch-ccnc alleges that, through May of 3006, he approached a variety of senior execiitivcs in Ratncr s organization, attempting to rcvicw what had occurred (d, 1 63). 1 In the Spring ol2006, Grcene approachcd Sadie Mitnick, a senior vice prcsident of Forest Ratner, who allegedly acknowledged that Greene should have been takcn care of for his efforts, and proniiscd that if Greene produced polential investors, delendants would pay Grccne a finder s fcc, as they had done with others (id, 7 64). Thereafter, Greene s counsel allegedly made a written demand on Ratner; however, Ratner has so far relused to compensate Grccne for his efforts (d, 7 66). Greene coinnieiiccd thc instant action, seeking the claimed fair and reasonahlc value of his services. The complaint contains causes of action for breach d implicd contract (first), promissory estoppel (sccond), quantum meruit (third), and money had and received (sixth). Damages for financial damages are also sought in causes of action for fraudulent inducement (fourth) and breach o l t h e covenant of good h i t h and f air dealing (fifth). Separately, plaintiff dcinands an award of puiiitive damages. Defendants now move to disiniss the complaint on the ground that the alleged oral agreement, upon which Greene seeks to recover finder s Lees, runs alobul of the statute ollrauds (General Obligations Caw 5 5-701 [a] [lo]). They argue that dismissal of thc contract-based and h u d u l e n t inducement clainis is furtlicr warrantcd, as tlicrc is documentary evidciicc cstablishing As will be dcscribed in more detail, infra, the documentary evidence shows that, some months earlier, Greene had, in fact, requcsted and subsequently received thc rcturn o l his $6,000,000 iiivestniciit i n the Team (see Mitnick Aff., Exh. A-C). 5 3 [* 7 ] that the alleged agreement, at thc core ofplaiiitiff s claims, never existed. Specifically, del endants note that, although the complaint alleges that Greene was iiiduced to invest and raise funds for the Team by the various promiscs madc about his future role in the organization, there is documentary evidence, i.c., a lcttcr dated .luly 13, 2004, which establishes that Greene subsequently sought the return of his invcstment because the partics had been uiiable to reach any Mitnick Aff., Exh. A). The July 13, 2004 letter, agrcciiicnt on the tcriiis of that participation ( g signed by Greene on behalf of EG Group, LLC, provides that: as [i]~iasniuch we have riot been able to reach agreemcnt on the terms of my participation and the applicable Operating Agreement, at this time I would ask you to returii [the rcrnainder oil my deposit of $5,000,000, together with interest thereon from thc date of the deposit (November 7,2003). () d Defendants additionally note that Greene has conceded, in the complaint, that lie was . without an express written or oral agreement specifying the exact terms of Greenc s compensation (Conipl., 7 68). Defciidants arguc that dismissal of the promissory estoppel claim is further warranted, because plaintiff has not alleged an unconscionable injury sufficient to ovcrcoine the statutc of lrauds. They argue that disinissal of the fraudulent induccrnent claim is further warranted on the ground that it is no inorc than a breach of contract claim dressed up as a claim for fraud. Finally, defendants argue that, to the extent that plaintiff seeks to rccuver the amount of his investment in thc I cam, dismissal of such claini is warranted, as all of plaintiff s investment was returned to him, with intcrcst, by August of 2004. In support o r their contention, defendants 11avc produced copies of two wire transfer coiifirliiatioiis establishing that $1,000,000 was Mitilick Aff., Exh. B) and that, following transferred to Circcnc oii Fcbruaiy 23, 2004 ( g 6 [* 8 ] dekndants receipl of the July 13, 2004 letter, the remaining $5,000,000, plus interest, was returned on August 3, 2004 (d, C). Exh. Although not alleged in thc complaint, plaintiff has acknowlcdged, in his Mcmorandum of Law submitted in opposition to the motion, that the $6,000,000 investmcnt was returned in 2004 (seeP1. Br., at 7-X), that he now seeks only the value of what was promised to him for and the work he performed on behalf of defendants (d, at 2). Grcene argues that the return of thc investment is irrelevant to thcsc claims, as there is no evidence to support that Greene s return on his investment is a forfeiturc of remuneration due him lor procuring investors (.. d) In any cvent, plaintiff argues that dismissal ofthe complaint is not warranted, because the services that he rendered to defendants wcnt beyond that of mere fund-raising, and thus were more extcnsive than the liiiiited activities of an intermediary generally encompassed by GOL $ 5-701 (a) (1 0). Additionally, hc argucs that, even if the Court should find that the statute of frauds is applicablc to his services, the promises of remuneration allcgcdly contained in the Benefits 1,cttcr arc sufficient to sustain thc quantum meruit and money had and received claims, if not the two contract-bascd claims. Plaintilf argues that dismissal o l the cause of action for promissory estoppel is not warranted, as the issue of whether a loss of finder s fees constitutes an unconscionable injury is an issue of fact that should not bc dccided on a CPLR 32 1 1 motion. He argues that dismissal of tlic claim for fraudulent inducement is not warranted, as this claim is bascd upoii the allegedly false reprcscntations defendants made to induce Greene to provide his services to solicit investors, and not upon any express agrccment. Grccnc argucs that, because the alleged representations were entirely independent of any contractual relations 7 [* 9 ] between the partics, they are suilicient to sustain this cause of action. 111SC U S S ION On a motion to dismiss for failure to state a cause of action (CPLR 321 1 [a] [7]), the Court must accept the f x t s alleged as true and accord the plaintiff the benefit of cvery favorable inkrence (seeLeon v Martinez, 84 NY2d 83 [1994]). However, factual allegations that do not state a viable cause of action, that consist of bare legal coiiclusioiis, or that are inherently incredible or clearly contradicted by documentary evidence are not entitled to such consideration (Skillgames, LLC v Brodv, 1 AD3d 247, 250 [lst Dept 20031, citing Canklia v Chicago Tribune-New York News Synditytc, Inc., 204 AD2d 233 [lst Depl 19941. When evidentiary material is considcrcd, thc criterion is whether the proponcnt of the pleading has a cause of action, not whether he has statcd one (Guggenlieimer v Ginzburx, 43 NY2d 268,275 [1977]). Dismissal pursuant to CPLR 321 1 (a) (1) is warranted only whcre the documeiitaiy evidence conclusively establishcs a defense to the asserted claims as a matter of law (Leon v Martiiiw, 84 NY2d at 88). Gcneral Obligations Law 5 5-701, which codifies New York law regarding thc statute o f frauds, provides, in relevant part, that: (a) Every agreement, promise or undertaking is void, unless it or sonic note or memorandum thereof be in writing, and subscribcd by thc party to be charged thercwith, or by his lawf ul agent, if such agreement, promise or undertaking: *** (10) Is a contract to pay compensation for services rendered in negotiating a loan, or in negotiating the purchase, sale, exchange, rciiting or leasing of any real estate or interest therein, or of a busiiicss opportunity. . . 8 [* 10 ] (GCIL 5 5-701 [a] [lo]). The statute defines negotiating to include[] procuring an introduction to a party to the transaction or assisting in the negotiation or consummation of the transaction ( ) provision expressly applies to a contract implied in [act or in law to pay d The . reaso nab 1c cornpelisation (id.). Initially, plaiiitiff argues that the statute of frauds does not apply to his claimed activities because he was solicited by Ratner not only to usc his conncctions and abilities to raise funds, but also to introducc Ratner to appropriate persons and communicate Katner s intentions with regard to the Nets franchise. Plaintiff argues that, due to the range of scrvices that he performcd for defendants, his role transccnded that of a mere intermediary wlio perforni[s] limited services in the consummation of ccrtaiii kinds of coinniercial transactions (Frccdman v Chemical Constr. Corn., 43 NY2d 260, 266 119771) aiid thus takes his activities outside thc statute o l frauds (citing, intcr alia, Super v Abdelazini, 108 AD2d 1040, 1041-42 [3d Dept 19851; Streit v Bushiell, 424 F Supp 2d 633, 642 [SDNY 20061; Riley v N.F.S. Sews., Inc., 891 I Supp 972, ; 977 [SDNY 19951). Whilc thc complaint alleges that Greene peribrmed more than o w scrvice for defendants, all of the services that Grcene allegedly performed involved either introducing parties to the transaction, or assisting Iiatricr in bringing about the consummation of that transaction. Courts have consistently held that where . . . the intermediary s activity is so evidently that of providing know-how or know-who . in bringing about between principals an enterprise of some coinplexity or an acquisition of-a signilicnnt interest in an enterprise, the statute is applicablc (Freedman, 43 NY2d at 267; Newman v Crazy Eddie, Inc., 11 9 AD2d 738 [2d Dcpt 19861). As all of the services allegedly perf ornied by Greeiie fall within the core meaning of negotiating, [* 11 ] as that tenu is defined in GOL 8 5-701 (a) (1 0), the statute is applicable. Therelore, any agreement pcrtaining to those services must be evidenced by a writing to bc enforceable. 1 0 be sufficient to satisfy the statute of frauds, a writing evidencing a contract must contain all of the essential tcrnis of the purportcd agreement, including the ratc of coiiipcnsation (G Neinelka v Oirestor MEt. Co., LLC, 40 AD3d 505 [lst Dept 20071, Iv denied 10 NY3d 705 120081; Signature Brokeraw Inc. v Group Health Inc., 5 AD3d 196 [ 1st Ilept 20041); V. Ponte and Sons, Inc. v American Fibers Intl., 222 AD2d 271 [lst Dept 1995 I). Howcver, it is not necessary that the contract be set forth in a single document, as [sligned and unsigned writings rclating to the sainc transaction , , , may be read together to evidence a binding contract (Weiner & Co. v Teitelbauni, 107 AD2d 583 [ 1 st Dept 19851, citing Crabtree v Elizabeth Arden Sales Corm, 305 NY 48 119531). While allegations that a series of letters and relatcd memoranda comprise a complete and cnforceable docunicnt may be suftkient, for pleading purposes, to sustain a contract cause of. action (mBrylmove Ltd. v Tonipkins, PLC, 172 AD2d 452 11 st Dept 199l]), here, the complaint contains 110 such allegations. Nor has plaintiff identified anything in his evidentiary submissions, olfered in further support of the pleadings, which might indicate that the Henellits Lcttcr either separately, or in conjunction with the other agreements between Brooklyn Basketball and EG Group, coiiiprises a complete and enforceable agreement with respect to Greene s service in procuring invcstors and/or in assisting in the acquisition of the Team. Indeed, in the iinplicd contract cause of action, Greene essentially acluiowledges the absencc of such agreement, in alleging that lie was entitled to recover the fair and reasonable valuc of his scrvices [elven without an cxpress written or oral agreement spccifying thc cxact temis oi 10 [* 12 ] Greene s compensation (Compl., 7 68). As the complaint does not allege an express contract nor purport that an express contract was i omied with respect to his fiind-raising and other scrvices (Pl. Br., at 22), the ihst cause of aclion, for brcach 01. implied contract, is dismissed. The fifth cause of action, for brcacli of the covenant 01 good faith and fair dealing, is also dismissed, for lack of a valid and binding contract lrom which such duty would arise (Schorr v Guardian L i k 111s. Co. of Am., 44 AD3d 3 19 [ 1 s t Dept 20071; American-Europcan Art Assoc., Inc. v I rend Galleries, IIIC.,227 AD2d 170 [ 1st Dept 1996 I). Plaintiff argucs that, even if the contract claims cannot be sustained by virtue of the statute of frauds, he should still be entitled to seek to recover the value of his services in the causes of action for quantum inenlit and money had and received. Greene notes that, although the statute of frauds applies equally to contracts applied in law or in fact to pay reasonable compensation, the writing requirements to support a claim in quantum meruit are not as stringent as those l o state a breach of contract claim. Thus, unlike a contract action, where a memorandum sufficient to Ineel the requireincnts of the statute of frauds must contain all thc material t c m s of tlic agreement, [iJn an action in ciuantum meruit . . . for the reasonable valuc o f . . . services, if it does not appear that there has been an agreement on the rate of compensation, a sufficient memorandum nced only evidence the fact of plaintili s einploymeiit by delendant to render thc alleged services. The obligation o l the defendant to pay reasonablc conipcnsation for the services is thcn implied (Morris Colion & Uo. v Russell, 23 NY2d 569, 575-76 [ 19691; see also Davis & Mamber, Ltd. v Adrienne Vittadini, Iiic,, 212 AD2d 424 [ 1st Dept 19951). PlaintilT contends that the Bencfits Ixtter, the Subscription Agreement and a separate II [* 13 ] escrow letter that were all executed on November 7. 2003, together comprise a memorandum suffjcient to sustain such claim. Specifically, plaintiff argues that the k n e f i t s Letter, by making rcfcrence to his role in [he company rather than to his jnvestment, supports his allegations that the promised remuneration did not relate solely to that investment. He argues that the Retiefits Letter was intended to inemorialize the benefits to be provided to him in exchange for his role, i.e., in providing and procuring investors, to the exclusion of his capital investment, which, he now argues, was governed solely by the escrow letter (PI. Br,, at 17) . Plaintiff contends that the Benefits Letter, by evinc[ing] the fact of plaintilf s employment by dcfciidanl to render the alleged services for his role on behalf of [dlcfendants ( d ) i . , suftjcient to is, thus, sustain his quantum meruit claini. Additionally, hc argues that, if the Court sustains his quantum meruit claim, his causc of action for money had and received also should be sustained, since defendants liavc sought dismissal of that claim on exactly the same grounds. In Morris Cohon, the Court olAppeals held that the memorandum at issue was sufficient to sustain a quantum meruit claim, as the writing relied upon by plaintiff identifie[d] the parties to the contract, the subject matter 01. the contract and establishc[d] that plaintiff in fact performed (23 NY2d at 574). Following Morris Cohon, courts havc permitted quaiituni meruit c l a i m to proceed where there existed a writing that, at a miniiiiuni, idenliiied the existcncc of an alleged agreement and its subject matter, or acknowledged perfonmncc of the alleged scrviccs (see c . Gottcsnian Co. v Keystone Enters., Inc., 43 AD3d 696 [lst I k p t 20071; Davis & ~ Mamber, Ltd. v Adrienne Vittadini, Inc., 212 AD2d at 706; Kalfiii v LJnited States Olympic Cornm., 209 AD2d 279 11st I k p t 19941; Hlyc v Colonial Corp. of h i . , 102 ATl2d 297 [ l s t Dept 19841; Shapiro v Dictaphone Corp., 66 AD2d 8 8 2 , 884-85 [2d Dept 19781). 12 [* 14 ] I {ere, howevcr, none of the writings referenced by plaintiff identify any o r tlic services allegedly to be performed by Greene on del endants behalf, or acknowledge plaintiff s pcrforinance thereof. Thus, as tlic writings fail to establish eithcr the existence or subject matter of the alleged agrccment, they are not sufficient to support the quantum meruit claim. Accordingly, this cause of action is dismissed. As the cause of action for money had and rcccivcd is based solely on dcfcndants alleged failure to compcnsatc plaintiff, after receiving the benefits of his services, it too is precluded by thc statutc of frauds, and is dismissed. The essential clcments of a cause of action for promissory cstoppel are a clear and unambiguous promise, and an injury sustained in reliance on that promise (see Plaza v Estatc of Wisser, 2 1 1 AD2d 1 1 1 [ 1st Dept 19951). Where the doctrine of promissory estoppel is invoked to preclude a party from asserting the statute of frauds, its use is reserved for that limited class of actions where the promisee, in reliance on the proniisc, has suffered unconscionable injury (m Melwani v .lain, 28 1 AD2d 276, 277 [ 1st Dept 200 I]; see also American Bartenders School, Inc. v 105 Madison Co., 59 NY2d 716 [1983]), Le, an injury beyond that which flows naturally (expectation damages) from tlic non-pcrforrnance of the unenforceablc agrccment or promise (Mcrex A.G. v Fairchild Weston Sys., Tnc., 29 P3d 821, 826 [2d Cir 19941, cert denied 513 US 1084 119951; Philo Smith & C o. v USLIFE Coiy,, 554 F2d 34, 36 [2d Cir 19771). Evcn assuming that defendants pro~iises reniuiieration were sufficicntly clear and of unambiguous to sustain this cause of action, dismissal is warranted as the complaint docs not allcge unconscionable injury. Nor does the complaint allegc conduct or cjrcunistances so egregious, as to rcnder the application of thc statute of frauds unconscio~iablc (Long Island Pen 13 [* 15 ] C orp. v Shatsky Metal Stainping Co., Tnc., 94 AD2d 788 r2d Dept 19831. The esscntial elements of a cause of actjoii for fraud in the inducement are a representation of a material existing fact, falsity, scienter, deccption and injury (Channel Master Corp. v Aluiminurn Ltd. Sales, Inc., 4 NY2d 403, 407 119581). As plaintilf notes, Lone who fraudulently rnjsrepresents hinisclf as intending to perform an agreeinciit is subjcct to liability b -whether the agreement is enforceable or not (id.at 408). However, [ilf the proof o f a tort promise or contracl, void undcr the statute of frauds, is essential to inaintain the action, thcrc may be no recovery ( ) d . In his fourth cause of action, Grecne alleges that delendants numcrous false rcpresentations and promises werc made with the sole and cxpress purpose of inducing Greene to invest large sums of money on his own, and to solicit others to invcst in the Team and Project and secure significant financial benefits for Ratner and others while excluding Greeiie from those very things which were expressly made conditions to his participation with liatner in taking advantage of Greeiic s oft repeated desire to bccome part of the management of an NBA tcam (Compl., 7 84). He further alleges that, in reliance on those promiscs, he initially invested $6,000,000 of his own and by reason of sheer effort and persuasion used with others raised $3 1,000,000 for the benefit of the Defendants (d., 5 ) . Greeiic alleges that, solely as a result 18 1 of the [oregoing, LheJ has suffered extensivc financial damagc in an amount believcd to exceed 1 86). $5,000,000 (d, As noted previously, plaintiff has acknowledged that lie does not now seek damages related to his invcstnicnt, as his total investnicnt was returned to him, with interest. Nor can plaintiff seek to recover, in this cause ol action, the value ofthe services that hc rendered to 14 [* 16 ] defendants i n reliance on their promises of rcniuncration, as such would require proof of promises that were void under the statutc of frauds AD2d 183 [ l st Dept], lv denied 95 NY2d 759 (seeWinEs Assoc., 111c.v Warnaco, Iiic., 269 [ZOOO] [ Since tlic alleged agreement is void by reason of the [sltatutc of [flrauds, plaintiff cannot use the same alleged promise as a basis for a cause of action sounding in quantum meruit . . . or in tad" (citations omitted)]; see also Nelson Bwel Bakerv Co., Inc. v Moshcorn Realty Corporation, 289 AD2d 69 [lst Dept 20011. As the First Department stated in Intercontinental Planningz,Ltd. v Daystrom, Inc., 30 AD2d 519, 51 9 [lst Dept 19681, affd 24 NY2d 372 [1969], [a]s it would be paradoxical to permit a business finder to recover, despite the absence of a writing, in quantum meruit, so too would it be incongruous and subversive of the legislative intent to perinit a plaintiff in a finder s fee case to avoid the [sltatute of [flrauds by relabeling his claims a . . . niisreprescntation ( ) d . As plaintiff has not particularized any other expenses or damages that were incurred in reliance on, but are not dependent upon proof of, the proiniscs void under the statute of frauds, this causc of action is dismissed. Accordingly, it is ORDERED that the iiiotioti to dismiss is granted and the complaint is disiiiisscd with costs and disbursements to defendant as taxed by the Clerk of the Court; and it is further 15 [* 17 ] ORDERED that the Clerk is directcd to enter judgment accordingly. Dated: July 22, 2008 EN'I'ER: J.S.C. 16

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