Fusco v Direct Access Mgt., L.L.C.

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Fusco v Direct Access Mgt., L.L.C. 2011 NY Slip Op 33367(U) December 7, 2011 Supreme Court, Nassau County Docket Number: 4450-09 Judge: Timothy S. Driscoll 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- STATE OF NEW YORK SHORT FORM ORDER Present: HON. TIMOTHY S. DRISCOLL Justice Supreme Court ------------------------------------------------------------------- Jr THOMAS G. FUSCO and ANTHONY FASULO, TRIAL/IAS PART: 20 NASSAU COUNTY Plaintiffs, IndeJr No: 4450Motion Seq. Nos. 1 and 2 -against- Submission Date: 10/7/11 DIRECT ACCESS MAAGEMENT , L.L. C. and AXCESS, INC. and MEDFORD DIALYSIS ACCESS, C. and DR. PURSHOTAM LAL NAGWANI, M. D., Defendants. -------------------------------------------------------------------)l Papers Read on these motions: Notice of Motion, Affirmation in Support, Memorandum of Law, Affidavit in Support and Exhibits.......................................................... Notice of Motion, Affirmation and Memorandum in Support, Affidavits in Support and Exhibits........................................................ Affirmation in Opposition and Exhibit................................................. Affirmation in Opposition, Affidavit in Opposition, Atto rney Affirmation and Exhibits............................................. ........... Memorandum of Law in Opposition to Motion to Amend............... Affrmation in Opposition, Affidavit in Opposition and EJrhibits..... Memorandum of Law in Opposition...................................................... Affdavits in Opposition and EJrhibits............................................... Affirmation in Reply...... Roche........................................................ Fusco.......................................................... Deposition Transcript of A. Fasulo................ Deposition Transcript of W. Deposition Transcript of T. This matter is before the Cour on 1) the motion filed by Defendants Medford Dialysis Access , P. C. (" Medford Dialysis ) and Purshotam Lal Nagwani , M. D. ("Nagwani" ) on Januar 2011 , and 2) the motion filed by Plaintiffs Thomas G. Fusco (" Fusco ) and Anthony Fasulo [* 2] Fasulo ) (collectively " Plaintiffs ) on Februar 15 2011 , both of which were submitted on October 7 , 2011 following oral argument before the Cour. For the reasons set forth below, the Cour 1) grants Plaintiffs ' motion to amend (motion sequence # 2); and 1) denies , as moot , the motion by Medford Dialysis and Nagwani motion for sumar judgment dismissing the complaint (motion sequence # 1). The Cour directs counsel for the paries to appear before the Cour for a Certification Conference on Januar 25 2012 at9:30 a. m. Counsel for the parties shall not be required to appear before the Court on December 14, 2011 at 9:30 a. m. as previously scheduled. BACKGROUND A. Relief Sought Medford Dialysis and Nagwani move , pursuant to CPLR 93212 , for an Order granting sumar judgment in favor of the moving Defendants , dismissing the Plaintiffs ' claims in their entirety and awarding costs and sanctions in favor of the moving Defendants. Plaintiffs move , pursuant to CPLR 99 3025(b) and 1003 , for an Order granting Plaintiff leave to 1) amend its complaint to add causes of action , in the form of the proposed Amended Verified Complaint (" Proposed Amended Complaint" ) (Ex. B to Meth Aff. in Supp. ); and 2) add John DeNoble , Keith Greenberg and Darell Sharelletti , Esq. as par- defendants. Defendants oppose Plaintiffs ' motion. B. The Paries ' History The Verified Complaint (" Complaint" ) (Ex. A to Sledjeski Aff. in Supp. ) alleges as follows: Fusco and Fasulo were members of Defendant Direct Access Management LLC (" Direct Access ) before it was sold. The first cause of action , asserted against Medford Dialysis Access , P. C. (" Medford" and Nagwani , alleges breach of contract. Plaintiffs allege that on or about July 31 , 2006 Plaintiffs and Defendants entered into a contract regarding the management of Medford. Pursuant to that contract , Plaintiffs provided the labor , services and material required for the construction and operation of Medford , and Plaintiffs were to be compensated $31 250 per month for expenses and operating costs , and $13 000 per month as salar. Defendants allegedly breached the contract by failng to pay the monies due for which Plaintiffs seek monetar damages. [* 3] The second cause of action , asserted against Medford and Nagwani , alleges tortious interference with business relations. Plaintiffs allege that, pursuant to the paries ' agreement Defendants were to refer their patients to Plaintiffs. Defendants referred patients to other facilities , in violation of the paries ' agreement. These referrals deprived Plaintiffs of patients and income and necessitated Plaintiffs sellng Direct Access, resulting in lost profits. Plaintiffs seek monetar damages. The third cause of action is asserted against Axcess , Inc. ("Axcess ) for breach of contract. On April 13 , 2008 , Direct Access was sold to Axcess. Plaintiffs allege that they were to receive $155 000. 00 as proceeds of that sale , but have received only $20 700. 00. Plaintiffs seek damages of at least $134 300. 00. . In support of the motion to amend , counsel for Plaintiffs affrms that Plaintiffs leared dUring discovery, that Defendants were negotiating the sale of Direct Access and Medford without notice to Plaintiffs. Counsel avers , further , that Plaintiffs have a basis to allege that Defendants commtted fraudulent acts in connection with that s e and the negotiation of the sale documents. The proposed amendments inter alia 1) plead with greater specificity the allegations in the original first and second causes of action against Nagwani and Medford; 2) include allegations against Nagwani and proposed par Darell Sharelletti , Esq. Sharelletti" ) for fraud in the inducement and fraud in the execution regarding dealings addressed in the original Complaint; 3) allege unust enrichment by Nagwani based on information leared during discovery; and 4) request rescission and reformation of the contribution agreement based on information leared during the deposition of a representative of Axcess. Plaintiffs ' counsel notes that Plaintiffs have complied with the discovery schedule set by the Cour , and have fied this motion prior to the expiration of that discovery schedule and prior to the filing of a note of issue. Depositions of the four original paries were completed on Februar 3 , 2011 and Plaintiffs fied the instant motion on Februar 9 2011. Thus , Plaintiffs submit , they have filed this motion promptly upon learing the information on which the motion is based. C. The Paries ' Positions Plaintiffs seek leave to fie action against the original paries the Proposed Amended Complaint to add new causes of based on the same " underlying fact pattern " in the initial [* 4] 9), and to add new paries , two of which are the individual Complaint (Meth Aff. in Supp. at actors on behalf of a corporation that was a Defendant in the initial action. Plaintiffs affirm that as a result of discovery that was conducted , they leared information supporting the proposed amendments. Plaintiffs submit that the Proposed Amended Complaint wil not prejudice Defendants , as it relates to the agreements referred to in the original Complaint. Defendants oppose Plaintiffs ' motion to amend , submitting, inter alia that 1) with respect to the proposed amendments involving Sharelletti , Plaintiffs are precluded from pursuing those causes of action because they never retained Sharelletti , he is not a par to any of the relevant agreements and the paries to the subject transaction were at all times represented by independent counsel; 2) with respect to the proposed amendments involving Axcess , the 3) because the proposed fraud proposed amendment would be " futile " (Berman Aff. in Opp. at causes of action are duplicative of the existing causes of action for breaches of contract , the new causes of action are asserted in bad faith and after undue delay, and the proposed causes of action for reformation of a contract and breach of an alleged oral agreement are bared by the merger clause and parol evidence rule; and 3) with respect to the proposed amendments involving Nagwani and Medford , Plaintiffs were aware of the proposed claims at the time they filed the initial Complaint , the proposed fraud claims are duplicative of the breach of contract claims , and the proposed claims for fraud in the execution lack merit in light of the fact that Plaintiffs were represented by independent counsel at the closing and were aware of all relevant documentation. RULING OF THE COURT A. Leave to Amend Leave to amend is to be freely given , absent prejudice or surprise directly resulting from the delay in seeking leave , unless the proposed amendment is palpably insufficient or patently devoid of merit. citing CLR Aurora Loan Services, LLC 3025(b) and B. Lucido v. v. Thomas 70 A.D.3d 986 987 (2d Dept. 2010), Mancuso 49 AD.3d 220 , 222 (2d Dept. 2008). Application of these Principles to the Instat Action In light of the liberal amendment policy and the Cour' s conclusion that the proposed amendment is not palpably insufficient or patently devoid of merit , the Cour grants Plaintiffs motion. The Proposed Amended Verified Complaint in the proposed form anexed to the moving papers shall be deemed served upon service of a copy of this order with notice of entry [* 5] thereof. Defendants shall serve an answer to the Amended Verified Complaint or otherwse respond thereto within 20 days from the date of said service. In view of the fact that the Cour has granted Plaintiffs ' motion to amend the complaint the original complaint is rendered a nullty and the motion for sumar judgment is denied as moot. All matters not decided herein are hereby denied. This constitutes the decision and order of the Cour. The Cour directs counsel for the paries to appear before the Cour for a Certification Conference on Januar 25 2012 at 9:30 a. m. Counsel for the parties shall not be required to appear before the Court on December 14, 2011 at 9:30 a. m. as previously scheduled. DATED: Mineola, NY December 7 , 2011 lS. ENTERED DEC 13 2011 NASSAU COUNTY COUNTY CLERK' S OFFICE

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