Carlo v 310 West 88th St., LLC

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Carlo v 310 West 88th St., LLC 2013 NY Slip Op 31984(U) August 8, 2013 Sup Ct, New York County Docket Number: 106706/11 Judge: Joan M. Kenney 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. SCANNED ON 8 27 2013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY JojlNM. KENNEY PRESENT: CARLO, LAURA GARAFOLO - iQE AUG 26 2013 - Index Number : 106706/2011 INDEX NO. - SUMMARY JUDGMENT The following papers, numbered 1 to Answering Affidavits 1 /0675/$/ s & d I- 2 7 9,were read on this motion tolfor Notice of MotionlOrder to Show Cause K PART J.S.Cp IN O W IW s ) . - Affidavits - Exhibits - Exhibits 3&= $42 I No(@. Replying Affidavits Upon the foregoing papers, it is ordered that this motion is MOTION IS DECIDED IN ACCORDANCE WITH THE ATTAWED MEMORANDUM DECISION z L , J.S.C. Dated: ..................................................................... 0 CASE DISPOSED 0DENIED 2. CHECK AS APPROPRIATE: .......................... ,MOTION IS: 0GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 1. CHECK ONE: 0DO NOT POST KNON-FI NAL+MS ITION 0GRANTED IN PART 0SUBMIT ORDER OTHER 0FIDUCIARY APPOINTMENT QEFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS Part 8 ....................................................................... X Laura Garafolo Carlo, as the Executrix of the Estate of Philip Carlo, and Laura Garafolo Carlo, individually, FILED AUG 26 2013 COUNTY CLERKS OFFICE NEW YORK Plaintiffs, DECISION AND ORDER Index Number: 106706/11 Motion Seq. No.: 003 -againstSt., 310 West 88*h LLC, Robert Ganer, Doreen Mannanice, Joseph Mannanice, Ganer, Grossbach & Ganer, LLC, Defendants. ...................................................................... X KENNEY, JOAN M., J. Recitation, as required by CPLR 22 19(a), of the papers considered in review of this motion to dismiss. Papers Notice of Motion, Affirmations, and Exhibits Opposition Affirmation and Exhibits Reply Affirmation, Exhibits, and Memo of Law Numbered 1-29 30-42 43-50 In this action, defendants, 310 West Bth LLC (310W), Doreen Mannanice, and St., Joseph Mannanice, move for an Order, pursuant to CPLR 3212, dismissing the claims against them, and for an Order, pursuant to CPLR 3212, granting summary judgment on their counterclaims. Factual Background The facts are presumed to be known as they are recited in this Court's prior decision dated January 3 1,201 3, and will not be repeated herein. Arguments Defendants assert that plaintiffs do not offer any admissible evidence to support their claims, and that plaintiffs fail to plead fraud with the necessary specificity. [* 3] Plaintiffs maintain that defendants fraudulently acquired title to 3 10 West 88thSt., and that any evidence proving otherwise is hearsay. Discussion Pursuant to CPLR 32 12(b), a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defeiise to the cause of action or that the cause of action or defense lacks merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law to direct judgment in favor of any party. Except as provided in subdivision c of this rule, the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to summary judgment, the court may grant such judgment without the necessity of a cross-motion. The rule governing summary judgment is well established: The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (Winegrad v New York University Medical Center, 64 NY2d 85 1 [ 19851; Tortorello v Carlin, 260 AD2d 20 1 [ 1st Dept 19991). Unjust enrichment is a quasi-contract theory of recovery, and is an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties concerned. A plaintiff claiming unjust enrichment must show that the other party was enriched, at plaintiffs expense, and that it is against equity and good conscience to permit the other party to 2 [* 4] retain what is sought to be recovered; although privity is not required for an unjust enrichment claim, a claim will not be supported unless there is a connection or relationship between the parties that could have caused reliance or inducement on the plaintiffs part. (Georgia Malone & Co., Inc. v Ralph Rieder, 86 AD3d 406 [IstDept. 201 11). Here, defendants were not enriched at plaintiffs expense, as defendants 50% share in 3 1OW was vested before the signing of Philip Carlo s will, when it was transferred to them from Frank Carlo. Philip never had a 100% ownership interest in the property to begin with, so defendants could not benefit at plaintiffs expense. The elements necessary for the imposition of a constructive trust include: 1.) the existence of a confidential or fiduciary relationship; 2.) a promise; 3 .) a transfer in reliance upon promise; and 4.) an unjust enrichment. (In re Gupta, 38 AD3d 445 [IstDept. 20071). Here, since defendants were not unjustly enriched, plaintiffs have not satisfied their burden of proof for the imposition of a constructive trust. The elements necessary to sustain a cause of action for fraud include: 1.) a misrepresentation of a material fact; 2.) falsity of that representation; 3 .) scienter; 4.) reliance; and 5.) damages. (Stuart Silver Associates, Inc. v Baco Development Corp.,245 AD2d 96 [1St Dept. 19971). Actionable fraud claim[s] require proof that defendant made a misrepresentation of fact which was false and known to be false; it also requires a showing that the misrepresentation was made with the intent to induce another party s reliance upon it. (NYC Transit Auth. v Morris J. Eisen, P.C., AD2d 78 [lstDept. 20001). CPLR 3016(b) states: 276 where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be 3 [* 5] stated in detail. In this action, plaintiffs were not damaged in any way, as they were never entitled to own more than 50% of the property. Even assuming, arguendo, that plaintiffs had actual damages, and asserted each of the elements, plaintiffs have failed to satisfy the burden delineated by CPLR 3016(b) with regard to specificity. Plaintiffs third cause of action alleges as follows : The plaintiffs repeat, reiterate, and re-allege each and every allegation contained in paragraphs FIRST through FIFTY-FOURTH inclusive with like force and effect as if fully set forth at length herein above. That in each instance, the transfer(s) andor conveyances of the Premises were fraudulent, as a matter of law. That in each instance, the transfer(s) and/or conveyances of the Premises were fraudulent, in accordance with the Debtor and Creditor Law of the State of New York. Based on all the foregoing, the Court should issue an [Olrder directing the defendants to convey the Premises to the Estate of PHILIP CARLO or in the alternative award the Plaintiffs monetary damages in the sum of FIVE MILLION ($5,000,000.00) DOLLARS. Nothing in the fraud cause of action as pled specifies the actual acts of purported fraud. RPAPL 1501 states: where a person claims an estate or interest in real property; or where he claims such estate or interest as executor or administrator of a deceased person; ...such person or municipal corporation, as the case may be, may maintain an action against any other person, known or unknown, including one under disability as hereinafter specified, to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records, or from the allegations of the complaint, the defendant might make ... RPAPL 1515(1) further states that the complaint must state that the action is brought pursuant to this article ... Not only does the complaint fail to satisfy the statute and state that the Plaintiffs assertion that this Court need not consider defendants motion for failure to attach the pleadings, is moot, as plaintiffs have attached the pleadings to their opposition. 4 [* 6] action is brought pursuant to RPAPL Article 15, but they admit as much in their opposition ( Though RPAPL 1501 was not specifically referenced in Plaintiffs complaint... ). As such, this cause of action cannot be maintained. To seek an accounting, a member of an LLC must show that the individual the accounting is sought against is also a member of the LLC. (East Quogue Jet, LLC v East Quogue Members, LLC, 50 AD3d 1089 [2nd Dept. 20081). Here, plaintiff Doreen became a member of 3 1O upon W Philip s death, as outlined in the operating agreement. Defendants are clearly members of 3 1OW also, as 3 1OW is a named defendant. Defendants counterclaim for an accounting is granted and severed. Defendants summary judgment on their 2nd, 4th,Sh,and 6 hcounterclaims is denied. 3rd, Accordingly, it is hereby ORDERED, that defendants motion seeking summary judgment dismissing plaintiffs claims, is granted; and it is further ORDERED, that defendants motion, seeking summary judgment on their counterclaims, is granted in part, and denied in part; and it is further ORDERED, that the portion of the movant s action that seeks an accounting is severed and the issue is referred to a Special Referee to hear and report; and it is further ORDERED that counsel for the defendants shall, within 30 days from the date of this order, serve a copy of this order with notice of entry, together with a completed Information Sheet2,upon the Special Referee Clerk in the Motion Support Office (Room 119M), who is 2Copies are available in Rm. 119M at 60 Centre Street and on the Court s website at www.nycourts.gov/supctmanh under the References section of the Courthouse Procedures link). 5 [* 7] directed to place this matter on the calendar of the Special Referee's Part for the earliest convenient date. Dated: I ' ENTER: I I' Joan l(d/ Kenney, J.S.C. FILED COUNTY CLERKS OFFICE NEW YORK 6

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