Sokolin LLC v Cozzi

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Sokolin LLC v Cozzi 2012 NY Slip Op 31410(U) May 10, 2012 Supreme Court, Suffolk County Docket Number: 09-41173 Judge: Ralph T. Gazzillo 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] ,. ,I E ' 'e) INDEX NO sHP-*ohER j? 09-4 1173 ift%.k- '%:# I SUPREME COURT - STATE OF NEW YORK I.A.S. PART 6 - SUFFOLK COUNTY PRESENT: Hon. RALPH T. GAZZILLO Acting Justice of the Supreme Court SOKOLIN LLC, Plaintiff, MOTION DATE 5- 19-11 ADJ. DATE 1-5-12 Mot. Seq. # 001 - MD SINNREICH KOSAKOFF & MESSIN.A, LLP AtiLorney for Plaintiff 26'7 Carleton Avenue, Suite 301 Central Islip, New York 11722 - against CAROL COZZI, DENNIS TRAINA, SR., DENNIS TRAINA, JR., JOHN DOE #1 and JOHN DOE #2, REYNOLDS, CARONIA, GIANELLI, & LA PINTA, LLP Attorney for Defendants 35 Arkay Drive Hauppauge, New York 11788 Defendants. Upon the following papers numbered 1 to 33 read on this motion for summary iudament : Notice ofMotion/sOrder to Show Cause and supporting papers 1 - 23 ;Notice of Cross Motion and supporting papers ; Answering Affidavits and ; Retin supporting papers 24 - 3 1 ; Replying Affidavits and supporting papers 32 - 33 ; 'Other - ( F p ) it is, ORDERED that the motion by defendants Dennis Trairia, Sr., arid Dennis Traina, Jr., for an order granting summary judgment dismissing the complaint against thern is granted to the extent set forth herein, and is otherwise denied. Plaintiff Sokolin, LLC, a retailer of fine wines, commenced this action to recover damages allegedly sustained as the result of a scheme involving a former employee, defendant Carol Cozzi, and defendants Dennis Traina, Sr., and Dennis Traina, Jr. (hereinafter the Traina defendants or defendants). In addition to retail sales, Sokolin, LLC (hereinafter Sokolin) o Ffers various services, including the storage of wine collections. Cozzi allegedly used confidential information about Sokolin's clients and operating procedures obtained during her employment to devise a scheme whereby she transferred approximately two thousand bottles of wine from Sokolin's storage facility to the Traina defendants, particularly Dennis Traina, Sr. Hired by Sokolin in the 1990s to maintain the corporation's computer network, Cozzi allegedly concealed such transfers by using the accounts of existing clients and creating false records as to the retail price of such wines. It further is alleged that during the period of time such [* 2] Sokolin v Cozzi Index No. 09-4 1 173 Page No. 2 transfers were made, Cozzi leased an apartment at a residence owned by Dennis Traina, Sr., and that she was not authorized by Sokolin to sell bottles of wine to defendants. Thlz alleged scheme was discovered by Sokolin sometime in February or March 2008. It is noted that Cozzi has not appeared as a party in this action, and that no motion for a default judgment against her has been made by Sokolin. As relevant to the instant motion, the first cause of action in the complaint seeks damages for conversion, alleging that defendants wrongfully took control of bottles of fine and rare wine for which of Sokolin had the exclusive right of possession. The fourth and lifth caus8es action allege that defendants aided and abetted Cozzi in breaching both the duty of loyalty and the fiduciary duty owed to Sokolin. The sixth cause of action alleges defendants misappropriated !3okolin s trade secrets, inventory and inventory lists, and the seventh cause of action alleges defendants tortiously interfered with Sokolin s business. The eighth and ninth causes of action seek damages for fraud and fraudulent concealment, and the tenth cause of action seeks the imposition of a constructive trust. The Traina defendants answer denies the allegation that they participated L the alleged fraudulent scheme to olbtain n wine from Sokolin and asserts various affirmative defenses, including unclean hands, equitable estolppel and laches. The Traina defendants now move for an order dismissirlg the coi~~plaint against them. Although admitting Dennis Traina, Sr. purchased wine from Sokolin through Cozzi during the period from 20102 through 2007, defendants assert that they were not involved in Cozzi s alleged scheme and that they paid in full for the bottles of wine they obtained from Sokolin during such time. They also assert that Dennis Traina, Sr. paid Cozzi approximately $60,000 for wine that was to be stored in Sokolin s facility, and that such wine has not been delivered to him. More particularly, defendants argue the first through seventh causes of action should be dismissed as time-barred. They further argue summary judgment should be granted in their favor on the first cause of action on the grounds Dennis Traina, Sr. was a good faith purchaser of the wine he received from Sokolin, that he reasonably relied on Cozzi s apparent authority to sell him wine, and that Sokolin failed to specifically identic, the bottles of wine allegedly stolen from it. As to the causes of action alleging liability for aiding and abetting, they argue no fiduciary duty was owed by Cozzi to Sokolin, and that they did not know of or induce Cozzi to breach the fiduciary duty owed to her employer. Further, the Traina de:fendants argue the sixth, seventh, eighth and ninth causes of action should be dismissed, because plaintiffs failed to set forth in the complaint the factual bases for such claims against them. In addition, defendants seek dismissal of the tenth cause of action, alleging that Sokolin is unable to establish any of the elements necessary for the imposition of a constructive trust. Defendants submissions in support of the motion include copies of the pleadings, their own affidavits, copies of Sokolin s responses to various demands fbr disclosure, a purported recording of a telephone conversation between Cozzi and Dennis Traina, Sr., and a written statement signed by Cozzi dated May 2, 2008. Sokolin opposes the motion, arguing, among other things, that it is premature, as depositions of the parties have not been conducted. Plaintiff contends that documentary evidence annexed to counsel s affirmation in opposition to the motion raises triable issues as tci whether the Traina defendants knew of and participated in the alleged fraudulent scheme to steal wine from Sokolin s storage facility. Sokolin also asserts that causes of action for fraud and fraudulent concealment meet the pleading requirements of CPLR 3 106, and that a constructive trust may be imposed against defendants since they participated in [* 3] Sokolin v Cozzi Index No. 09-4 1173 PageNo. 3 Cozzi s scheme. In opposition, Sokolin submits copies of an affidavit of David Geaney, Esq., Vice President and General Counsel of Sokolin, a written statement by Cozzi, packing slips for wine ordlers that allegedly were picked up by defendants or their representatives at Sokolin s storage facility, and a shipping manifest for bottles of wine allegedly delivered by Sokolin to Dennis Traina s business address. Also submitted with the opposition papers are copies of e-mail correspondence with defendants and inventory statements that Cozzi allegedly viewed on her computer screen in February 2008. It is well settled that a party moving for summary judgment mu:jt make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidentiary proof in admissible form to demonstrate the absence of any material issues of fact (see Aharez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Zuckerman v City of New York, 49 NY2cL 557,427 NYS2d 595 [1980]; Frienidsof Animals v Associated Fur Mfrs., 46 NY2d 1065,4 16 NYS2d 790 [19791). Once such a showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923; Zuckerntan v City of New York, 49 NY2d 557,427 NYS2d 595). The failure to mak esuch a prima facie showing requires the denial of the motion regardless of the sufficiency clf the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,487 NYS2d 316 [1985]). Initially, the Court notes that the alleged recording of a telephone conversation between Cozzi and Dennis Traina, Sr. was not considered in the determination of the motion, as no foundation was established for its admissibility (see People v Ely, 68 NY2d 520, 5 10 NYS2d 532 [ 19861). The unsworn statement by Cozzi submitted by defendants also was not considered by the Court (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065,416 NYS2d 790). Further, the written statement by Cozzi allegedly taken in Houston, Texas on February 17,2011 which vias submitted with the opposition papers, was not considered. Significantly, while the written statement contains a jurat below Cozzi s signature stating it was subscribed and sworn to before a notaqr on February 17,201 1, the top of the statement indicates that it was taken by David Katz at a Barnes and Noble store, and that no other persons were present. Absent language in the statement itself indicating that it was, in fact, sworn to by Cozzi before an officer authorized to take oaths, the failure to submit a wrtificate of conformity renders the February 201 1 statement of Cozzi inadmissible (see CPLR 2309 [c]: cJ: Hall v Elrac, Inc., 79 AD3d 427, 913 NYS2d 37 [lst Dept 20101). In addition, legal argumlznts in support of the motion raised by defendants for the first time in the reply papers were not considered by the Court (see Sanz v Discount Auto, 10 AD3d 395,780 NYS2d 763 [2d Dept 20041; Dannasch v BiFuCco, 184 AD2d 415,585 NYS2d 360 [lst Dept 19921; Ritt v Lenox HillHosp., 182 AD2d 560,582 NYS2d 712 [lst Dept 19921). ~ The branch of defendants motion for summary judgment in their favor on the action for conversion is denied. To recover damages for conversion, a plaintiff must establish legal ownership or an immediate superior right of possession to a specific identifiable thing and that the defendant exercised an unauthorized dominion over the thing in question, to the alteration of its condition or tlo the exclusion of plaintiffs rights (Independence Discount Corp. v Bressner, 47 AD2d 756, 757, 365 NYS2d 44 [2d Dept 19751; see Colavito v New York Organ Dalnor Network, Inc., 8 NY3d 43,827 NYS2d 96 [2006]; Channel Marine Sales, Inc. v City of New York, 75 AD3d 600,903 NYS2d 922 [2d Dept 20101; Whitman Realty Group, Inc. v Galano, 41 AD3d 590,838 NYS2d 585 [2d Dept 20071). [* 4] Sokolin v Cozzi Index No. 09-4 1173 Page No. 4 The tort of conversion can occur even though there is no wrongful interit to possess the property of another (see Spodek v Liberty Mut. Ins. Co., 155 AD2d 439, 547 NYS2d 100 [2d Dept 19891;Ahfes v Aztec Enters., 120 AD2d 903,502 NYS2d 821 [3d Dept], lv denied 68 NY2d 61 1,510 NYS2d 1025 [ 19861). However, [wlhere one is rightfully in possession of property, one s continued custody and refusal to deliver it on demand of the owner until the owner proves his right to it does not constitute conversion (MehfmanMgt. Corp. v Fong May Fan, 121 AD2d 609,610,503 NYS2d 642 [2d Dept 19861; see Bradley v Roe, 282 NY 525,27 NE2d 35 [1940]; i7;rans World Trading, Ltd. v North Shore Univ. Hosp. at Pfainview,64 AD3d 698, 882 NYS2d 685 [2d Dept 2OC191). Here, the vague affidavits of the Traina defendants and the various sales orders, packing statements and other documents annexed to the moving papers are insufficient to establish a prima facie case that defendants were rightfully in possession of the bottles of wine received from Sokolin (cJ: Trms World Trading, Ltd. v North Shore Univ. Hosp. at Plainview, 64 AD3d 698, 882 NYS2d 685). As to the branch of defendants motion which seeks judgment in their favor on the fourth and fifth causes of action, it is well settled that an employee owes a duty of good faith and loyalty to his or her employer in the performance of his or her employment obligations (see Western Efec. Co. v Brenner, 41 NY2d 291 , 392 NYS2d 409 [1977]; Lamdin v Broadway Xurface Adv. Corp., 272 NY 133, 5 NE2d 66 [1936]; 30 FPS Prods., Inc. v Livofsi, 68 AD3d 1101, 891 NYS2d 162 [2d Dept 20091). An employee is prohibited from acting in any manner inconsistent with his [or her] agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his, [or her] duties (Lamdin v Broadway Surface Adv. Corp., 272 NE 133, 138,5 NE2d 66). Further, [a] fiduciary relationship arises between two persons when one of them is under a duty to act for or give advice for the benefit of another on matters within the scope of the relation (Roni LLC v Arfa, 18 NY3d 846, 848, 939 NYS2d 746 [2011], quoting EBC I, Inc. 1 Gofdmun,Sachs & Co., 5 NY3d 11, 19, 799 NYS2d 170 [2005] [internal quotation marks and citations omitted]). Such a duty does not depend on the existence of an agreement or contract between the parties; rather, it is created from the relationship between the fiduciary and the beneficiary (see Beqfefdv Ff,emingProps., LLC, 89 AD3ld 654,932 NYS2d 140 [2d Dept 201 11; Barrett v Freifeld, 64 AD3d 736: 883 NYS2d 305 [2d Dept 20091). A conventional business relationship is insufficient to create a fiduciary relationship (see AIU Sales, Inc. v Creative Bath Prods., h e . , 58 AD3d 6, 867 NYS2d 169 [2d Dept 20081). To establish a claim for aiding and abetting a breach of fiduciary duty or duty of loyalty, the plaintiff must present proof of a breach of the obligations owed to an employer, that the defendant knowingly induced or participated in the breach, and that the plaintiff suffered damages as a result of the breach (see SanfordlKissena Owners Corp. v Daraf Props., LLC, 84 AID3d 1210,923 NYS2d 692 [2d Dept 201 11; Kaufman v Cohen, 307 AD2d 113,760 NYS2d 157 [lst Dept 20071). One who aids and abets a breach of a fiduciary duty is liable for that breach, even if he or she had no independent fiduciary obligation to the alleged injured party, if the alleged aider and abettor rendered substantial assistance to the fiduciary in the course of effecting the alleged breach of duty (SanjordlKissena Owners Corp. v DaralProps., LLC, 84 AD3d 1210, 1212,923 NYS2d 692; see Monaglian v FordMotor Co., 71 AD3d 848,897 NYS2d 482 [2d Dept 20101; Vefazquezv Decaudin, 49 AD3d 712,854 NYS2d 163 [2d Dept 20081; see also Baron v Gafasso,83 AD3d 626, 921 NYS2d 100 [2d Dept 201 11). [* 5] Sokolin v Cozzi Index No. 09-4 1173 PageNo. 5 Here, it is undisputed that Cozzi was a faithless employee and transferred a substantial quantity of wine to the Traina defendants without her employer s know1edge and authorization, and the allegations in the complaint are sufficient to make out a claim for aiding and abetting Cozzi (see Shearson Lehman Bros. v Bagley, 205 AD2d 467,6 14 NYS2d 5 [1st Dept 19941). Moreover, though asserting in their affidavits that Cozzi appeared to have the authority to sell wine on [Sokolin s] behalf, and that every bottle of wine purchased was paid for in full and at a fair market rate, defendants submissions failed to show as a matter of law that 1:hey did not have actual knowledge of Cozzi s breach of the duties of good faith and loyalty, and that they did not assist in such breach. The Court notes that while the affidavit of Dennis Traina, Sr. states he paid Cozzi in cash for the last several deliveries, the date of such alleged purchases and the amount paid is not indicated. The affidavit also does not explain why the limited number of sales receipts from 2002 and 2004 annexed to the moving papers indicate purchases were made through separate accounts maintained under the names of Dennis Traina, Carol Cozzi and D. Trager. In addition, while defendants counsel s affirmation states wine purchases were made from Cozzi during the period from 2002 through 2007, there is no evidence in the moving papers as to the method of payment used for the other purchases and no evidence of payments made to Sokolin. Accordingly, summary judgment dismissing the causes of action against the Traina defendants for aiding and abetting is denied. The branch of the motion seeking dismissal of the sixth cause of action as against the Traina defendant is denied. To establish a cause of action for the misappropriation of trade secrets, a plaintiff must show (1) that it possessed a trade secret, and (2) that the defendant used the trade secret in breach of an agreement, confidential relationship or duty, or as a resull of discovery by improper means (North At. Instruments, Znc. v Haber, 188 F3d 38, 43-44 [2d Cir 19991). A trade secret is any formula, pattern, device or compilation of information which is used in one s business, and which gives [one] an opportunity to obtain an advantage over competitors who do not know c r use it (Ashland Mgt. v Janien, 82 NY2d 395,407,604 NYS2d 912 [1993], quoting Restatement of Torts 5 757, comment 1); see Laro Maintenance Corp. v Culkin, 267 AD2d 43 1,700 NYS2d 490 [2d Dept 19991). Stated differently, [a] trade secret, like any other secret, is nothing more than ]privatematter; something known to only one or a few and kept from the general public; and not susceptible to general knowledge (Leo Siven, Inc. v Cream, 29 NY2d 387, 394-395, 328 NYS2d 423 [1972]). Although a trade secret generally relates to the production of goods, it also may relate to the sale of goods or other business operations, such as bookkeeping methods, codes for determining discounts, and lists of specialized customers (Restatement of Torts 0 757, comment b). Factors for a cou11.to consider when determining whether information constitutes a trade secret include the extent to which the information is known outside of the plaintiffs particular business, the extent to which such information is known by the plaintiffs employees and others involved in its business, and the extent of the measures taken by the plaintiff to protect the secrecy of such information, the effort es pended 1 o develop the information, and the ease by which the information could be obtained by others (Restatement of Torts 5 757, comment b). Moreover, the information at issue must, in the first instance, be secret (Ashland Mgt. v Janien, 82 NY2d 395,407,604 NYS2d 912). Here, the allegations in the complaint that the Traina defendants, through improper means, obtained secret, confidential records and customer lists from Sokolin for their own use are sufficient to state a cause of action for misappropriation of trade secrets (see Bender Ins. Agency v Treiber Ins. [* 6] Sokolin v Cozzi Index No. 09-4 1 173 Page No. 6 Agency, 283 AD2d 448, 729 NYS2d 142 [2d Dept 2001 I). Defendants argument that non-specific and conclusory information provided by plaintiff is not sufficient to support a cause of action for misappropriation of trade secrets is insufficient to meet its burden for iin order granting summary judgment in its favor on such action. As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent s proof, but muslt affirmatively demonstrate the merit of its claim or defense (George Larkin Trucking Co. v Lisbon TireMart, 185 AD2d 614,615, 585 NYS2d 894 [4th Dept 19921). The branch of the motion seeking dismissal of the seventh cause: of action, however, is granted. To succeed on a cause of action for tortious interference with contractual relations, a plaintiff must show the existence of a valid contract between the plaintiff and a third party, r.he defendant s knowledge of such contract, the defendant s intentional and improper procurement of the breach of such contract by the third party, and damages (see White Plains Coat & Apron Co., Inc. v Cintas Corp., 8 NY3d 422, 835 NYS2d 530 [2007]; NBTBancorp v Fleernorstar Fin. Group, 87 NY2d 614,641 NYS2d 581 [ 19961; Lama Holding Co. v Smith Barney, 88 NY2d 4 13,646 NYS2cl76 [1996]; Miller v TheodoreTassy, 92 AD3d 650,938 NYS2d 172 [2d Dept 20121; Dune Deck Owners Corp. v Liggett, 85 AD3d 1093,927 NYS2d 125 [2d Dept 201 13). The tort of intentional interference with business relations requires a showing that the defendant intentionally and through wrongfill acts prevented a third party from extending a contractual relationship to the plaintiff (see Smith v Meridian Tech., Inc., 86 AD3d 557,927 NYS2d 141 [2d Dept 201 11; Adler v 20/20 Cos., 82 A.D3d 915,918 NYS2d 585 [2d Dept 201 13). The allegations set forth in the complaint are insufficient to stale a cause of action for tortious interference with contract, as there is no allegation the Traina defendants procured Sokolin s clients to breach their contracts with it (see Dune Deck Owners Corp. v Liggett, 85 AD3d 1093,927 NYS2d 125; Ferrandino & Son, Inc. v Wheaton Bldrs., Inc., LLC, 82 AD3d 1035,920 NYS2d 123 [2d Dept 201 11). Similarly, the complaint fails to set forth sufficient allegations Ihat the Traina defendants interfered with a prospective business relationship between Sok.olin and a third party (see Adler v 2OV20 Cos., 82 AD3d 915,918 NYS2d 585; White vIvy, 63 AD3d 1236,880 NYS2d 374 [3d Dept 20091; Pacheco v United Med. Assoc., 305 AD2d 71 1,759 NYS2d 556 [3d Dept 20031; Korn v Princz, 226 f AD2d 278,641 NYS2d 283 [lst Dept 19961; c 534 E. 11th Si. Hous. Dev. Fund Corp. v Hendrick, 90 AD3d 541,935 NYS2d 23 [lst Dept 20111). Further, summary judgment dismissing the fraud claims against the Traina defendants is denied as to the eighth cause of action, but granted as to the ninth cause of action. The essential elements of an action seeking damages for actual fraud are a representation or an omission as to a material fact made by the defendant that was false and known to be false, made for the purpose of inducing the plaintiff to rely upon it, justifiable reliance by the plaintiff on the misrepresenta.tion or material omission, and injury suffered as a result of such reliance (see Lama Holding Co. v Smith Barney, 88 NY2d 4 13,646 NY S2d 76; Luna1 Realty, LLC v DiSanto Realty, LLC, 88 AD3d 661,930 NYS2d 619 [2d Dept 201 11; Deutshe Bank Natl. Trust Co. v Sinclair, 68 AD3d 914, 891 KYS2d 445 [2d Dept 20091; Ozelkan v Tyree Bros. Envtl. Servs., Znc., 29 AD3d 877, 815 NYS2d 265 [2d Dept 20061). A plaintiff claiming fraud based on misrepresentation must demonstrate that the misrepresentation was of an existing fact, that it actually relied on the misrepresentation, and that such reliance was reasonable (see Deutshe Bank Natl. Trust Co. v Sinclair, 68 AD3d 914,891 NYS2d 445; Regina v Murotta, 67 AD3d 766,887 NYS2d 861 [2d Dept 20091; International Oil Field Supply Servs. C o p v Fadeyi, 35 AD3d 372, 825 [* 7] Sokolin v Cozzi Index No. 09-4 1 173 Page No. 7 NYS2d 730 [2d Dept 20061; Fitch v TMFSys.,272 AD2d 775,707 N r S2d 539 [2d Dept 20001). Alternatively, a fraud case may be predicated on acts of concealment wlhere the defendant had a duty to disclose material information (Kaufman v Cohen, 307 AD2d I 13, 1 19-120, 760 NYS2d 157 [1st Dept 20031; see Mitschele v Schultz, 36 AD3d 249,826 NYS2d 14 [lst Dept 20061). To recover damages for fraudulent concealment, in addition to the requirements of scienter, reliance and damages, a plaintifiF must establish that the defendant, as a result of a confidential or fiduciary relationship with the plaintiff, had a duty to disclose material information and failed to do so (see High Tides, LLC v DeMichele, 88 AD3d 954,93 1 NYS2d 377 [2d Dept 201 11; Mandarin Trading Ltd. v Wildenstein, 65 AD3d 448, 884 NYS2d 47 [lst Dept 20091, affd 16 NY3d 173,919 NYS2d 465 [2011]: P.T. Bank Cent. Asia, N.Y. Branch v ABNAMRO Bank N. E, 301 AD2d 373,754 NYS2d 245 [lst Dept 20031; Moser vSpizi:irro, 31 AD2d 537,295 NYS2d 198 [2d Dept 19681, affd25 NY2d 941,305 NYS2d 153 [1969]). Furthermore, pursuant to CPLR 3016, the circumstances constituting the wrong shall be stated in detail in the complaint, including specific dates and factual allegations establishing the elements of fraud (see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 883 NYS2d 147 [2009]; Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 860 NYS2d 422 [2008]; Morales v AMSMtg. Servs., Inc., 69 AD3d 691,897 NYS2d 103 [2d Dept 20101). It is undisputed that the Traina defendants obtained numerous bottles of wine from Sokolin through transactions with its employee, Cozzi. Contrary to the assertion by defense counsel, Sokoliii s allegations in the complaint are sufficient to state a cause of action against the Traina defendants for liability based on participation in a scheme to defi-aud (see Danna vMalco Realty, Inc., 51 AD3d 621, 622, 857 NYS2d 688 [2d Dept 20081). Liability for fi-aud may be premised on knowing participation in a scheme to defraud, even if such participation does not by itsel f suffice to constitute fraud (Danna i o Mako Realty, Inc., 5 1 AD3d 621,622, 857 NYS2d 688; see CPC Intl. v McKesson Corp., 70 NY2d 268,519 NYS2d 804 [1987]; Velazquez v Decaudin, 49 AD3d 712,854 NYS2d 163 [2d Dept 20081; Kuo Feng Corp. v Ma, 248 AD2d 168,669 NYS2d 575 [lst Dept], lv dismissed 92 NY2d 845,677 NYS2d 74, lv denied 92 NY2d 809,678 NYS2d 594 [1998]). l;urthermore, the vague affidavits of the Traina defendants submitted with the moving papers are insufficient to establish a prima facie case that they are entitled to judgment as a matter of law on the claim that they were involved in a scheme to defraud Sokolin (see generally Afvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]). However, as to the claim for fraudulent concealment, Sokolin has not alleged that a confidential or fiduciary relationship existed between it and the Traina defendamts (cJ:Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 919 NYS2d 465 [2011]). Summary judgment dismissing the cause of action against the Traina defendants for a constructive trust is granted. To obtain the equitable remedy of a constructive trust, a plaintiff must establish the following elements: (1) a confidential or fiduciary relationship, (2) a promise, express or implied, (3) a transfer in reliance of such promise, and (4) unjust enrichment (see Sharp v Kosmalsk,i,40 , NY2d 119,386 NYS2d 72 [1976]; Rowe v Kingston, -AD3d - 201;! NY Slip Op. 02664 [2d Delpt 20121; Watson v Pascal, 65 AD3d 1333, 886 NYS2d 440 [2d Ilept 20091). These elements, howeve:r, are not to be applied rigidly, as the purpose of a constructive trust is to prevent unjust enrichment (Simonds v Simonds, 45 NY2d 233,241,408 NYS2d 359 [1978]; see Rowe v Kingston, -AD3d --, 2012 NY Slip Op. 02664; Nastasi v Nastasi, 26 AD3d 32, 805 NYS2d 585 [2d Dept 20051). A constructive trust is the formula through which the conscience of equity finds expression. When [* 8] Sokolin v Cozzi Index No. 09-4 1 173 Page No. 8 property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest equity converts him to a trustee (Beatty v Guggenheim Exploration Co., 225 NY 380, 386, 122 NE 378 [1919]). As discussed above, the Traina defendants submissions in support of the motion were sufficient to establish a prima facie case that they owed no fiduciary duty to Sokolin and that no transfers of wine were ma,de to them by Sokolin in reliance of such relationship (see Guarino v North Country Mtge. Banking Corp., 79 AD3d 805,915 NYS2d 84 [2d Dept 20101). In opposition to this branch of the motion, plaintiff failed to submit admissible evidence showing a triable issue of fact as to the existence of a confidential or fiduciary relationship with defendants or any of the other elements for the imposition of a constructive trust (see Poupis v Brown, 90 AD3d 881,935 NYS2d 137 [2d Dept 201 11; cJ: Parr vRon,konkomtr Realty Venture I, LLC, 65 AD3d 1199,885 NYS2d 522 [2d Dept 20091). Finally, as to defendants claim that certain causes of action are time-barred, CPLR 32 11 (e) provides that certain enumerated defenses, including statute of limitations, are waived if not raised either in a responsive pleading or by way of a motion to dismiss made under CPLR 321 1 (a) (see Allen v Matthews, 266 AD2d 782,699 NYS2d 166 [3d Dept 19991). Neverthe!less, an unpleaded defense may serve as the basis for granting summary judgment in the absenc,eof surprise or prejudice to the opposing party (Sullivan v American Airlines, Inc., 80 AD3d 600,602, 914 NYS2d 276 [2d Dept 201 11; see Rogoffv San Juan Racing Assn., 54 NY2d 883,444 NYS2d 91 1 [198 I]; Allen v Matthews, 266 AD2d 782, 699 NYS2d 166). Thus, while the Traina defendants did not asseri. statute of limitations as an affirmative defense in their answer or move for dismissal under CPLR 32 1 1, the merits of such a defense will be considered by the Court, as Sokolin had an opportunity to respond to the instant motion (see Allen v Matthews, 266 AD2d 782,699 NYS2d 166). Here, the causes of action for conversion and misappropriation of trade secrets are governed by the three-year limitations period of CPLR 214 (3) (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132,879 NYS2d 355 [2009]; Pursnani v Stylish Move Sportjiwear, Inc., 92 AD3d 663,938 NYS2d 333 [2d Dept 20121; Andrew Greenberg, Inc. v Svane, Inc., 36 AD3d 1094,830 NYS2d 358 [3d Dept 20071; see also Architectronics, Inc. v Control Sys., h c . , 935 F Supp 425 [SDNY 19961). To the extent that such causes of action accrued more than three ycars prior to the November 12,2009 commencement date of this action, they are time-barred (see CI LR214 [3]). Further, summary judgment on the cause of action for fraud having been denied, the fourth imd fifth causes of action for aiding and abetting Cozzi s breach of her duties of good faith and loyalty to Sokolin are governed by the six-year limitations period (see CPLR 2 13 [ 11; Klein v Gutman, 12 AD 3d 4 17, 784 NYS2d 58 1 [2d Dept 20041; Kaufman v Cohen, 307 AD2d 113,760 NYS2d 157). The branch of defendants motion seeking dismissal of causes of action against them as time-barred, therefore, is granted only as to any acts of conversion or use of trade secrets occurring more than three years before the instant action was brought, and is otherwise denied. i -FINAL DISPOSITION X %J NO -FIN L DISPOSITION

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