Barone v Barone

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Barone v Barone 2013 NY Slip Op 34094(U) January 23, 2013 Supreme Court, Queens County Docket Number: 9162/12 Judge: Orin R. Kitzes Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] Pago 338 ot 3&a Dl&2i2012 AFFlllMATION IN OPPOSITION I " .... y ·. · ·~....... ' Short Farm Ordet NEW YORK SUPREME COl'.J~T - QUEENS COUNTY PtESENT: HON. ORIN R KITZES, · JuStlce :· . .... ' . -------__,,,,-----------:----:-~ -------- . . -x Fl.ANK A. BARONE, FART 17 . ... .· 1 .. : Plain~iff, .. ...~:..._ -against- Index No. :9162/12 ._, ·,.. . .....: ·~'~ MotionDate.: 1/09/t.3 Motion Cstl. No. 4 Seq. No. 3 ~ ... I GILMA POSADA BARO.NE a/k/a MARIA G. Oft'ic~r and Shareholder oiBARONE PROPERTIES, INC., and'.38' Officer and Shal'eholder of BARONE PROP)nlTIES n, INC., :BARONE PRQPERJ'IES, INC., and BARONE PlOPERTI'.ES Il, INC.1 Defendant. :SA.RONE, Individually, as ~- ----.--·----~""--- . -x T he followin,g papers numb~d 1to19 read on this'tllotion w RcarguC, Rchew artd Amend the Complaint and' the cross--motion to dismiss the Amended Complaint. . PAPERS NUMBERED I- 4 5 :...· 8 . ' .. Notice of Motiou-Affidavit-J3xhibits........:.... .'..,~ ................""''' Affrrmation in Opposition-Affidavit-Exhibits ..............., .......... . ·9 -12 Notice of Cross-Motion -Affirmation-Exhibits........................ Affidavit in Oppositio11-Affirmation -Ekhibits ...................:._.,:.. .. 13::}6 17 -' 18 . Reply Affumat!on. ........... :.........._.................:..............:............ - Memo of l.8.w.'.................~ ..;...............,.......:.............................. 19 • : I•' • ·Plaintiff's inoves to Reargue or Renew the prior order of this Court dated July 17, ' .. . 2012., Plaintiff also seeks, pursuaqt to CPLR 3025, leave to Amend the Complaint. That portion of the motio~ seeking Reargume~t 'is deni~d .. There has been no showing that this· Court overlo.oked or misappt"ebended facts or law upon the prior ~pplication . '. . .. . .:. ·.· ·: .·; . ..... . I Pnntod 1211312016 [* 2] P1go 339 of 36.! 9 162/2012 AFFIRMATION IN OPPOSITION ·e That portion: of Plaintiff's motipn whi.ch seeks to Renew the prio~ order Qf this Court diled July ·17 2012 is based upon (i)a rctter> cfated July 23-, 20 ! 2, from Auburndale I l:nprovement Association, Inc., ("ALAI") a civic a,ssociation in the area of the Circle Mall ~ch is owned and operated by Ba.rone Properties. fu the AW letter it outlines four C<l!nplaints against .the operation of various properties located in Queens,.New York. The ·. Dtfendants demonstrate, in opposition to the motion that the second, third and fourth it<oo.ized complaints are.against properties which belong to other entities with oo appa~ent lWc to Defendants, The first itemized complaint addresses the vegetation planted at the Mall asv.acying. from that shown on plan.$,. e~ly moroing deliveries to <;>ne of the tenants' at the . . Mall and parking issues at or near other Mall ten11.nts.. These complaints while clearly . . . imp,a~nt to tho AIAl and area residents ai·e nt>t shown to be known to Defendants or of a nature sufficient t9 bas~ provisional ·r.ernedies upon~ as Pl~tiff seeks. Acrordingly, 1b.c motion to Renew is also denied. · · .. · The last portion of the moti9n is for leave, p~~nt to CPLR 3025(b), to amend the complaint essentially to add Barone· Properties, Inc. and Barone Properties CT, Inc. as ~dditional party defendants. The Amended Verified Complaint is s~milar to the origin!U Complaint.except for the adding of the twt> c0tporate defendants Exeepi to the extent sel forth ·below, that portion of the motion is granted." ., 2 Pnnted. 121131 2018 [* 3] Pogo'.l40ol3811 9182/2012 AFFIRMATION IN OPPOSITION '• '• . I).efendants crbss~move to dis~s the Amended Verified ·~omplaint on !he grounds ~f Collateral Esto}>pel (CfLR 3211 [aJ[5]); that the C~nstructive Trust cause ·a.r Action fails t:o sate a cause of action (01LR ~2.11"(a][7J)~ ~nd, that plaintiffs first and fourth -causes of The p Ac<on are time barred (CPLR 3211 [a] [5]). _ Arµended Com_lamt asserts five ~uses of acthn: first, for a: constructive·trust; · recond, fur an accotmting; third, for ·fraud- fourth, .for i ; uo.jist enrichment; and,. fifth, far th~ appointmen.t of a-receiver. Defendants"' collateral estopp~l argument is baied upon PI1l4itiffhaving signeQ the S 11110gate's Gourt petition to enter his brother's will- for probate. That Will provided that his wife, th~ prhne defendant in this action WQtdd.receive all of his {>roperty, real .and personal. Plaintiff alleges _ prlorto his death, his older brothei: and he: owne4 and pperated a real that estate business in which they pwohilsed an(! S'Qld commercial_ properties, as well.as managing then. whil~ c;>wned. Plaintlffa~sertS that they began their real estate :ventures using the profits. from -a car dealership they jointly owned. Plaintiff also_ insists that they shared the income and profits from the re!ll estate business equally. While the size of th~ e_ te was $ considerable, totaling in ex~ess Qf the nearly $41.000,000 sef forth in hj.s estate taX'. return, · . . Plafatiff insists that at the tiine he acquiesced in tpls transfetto the estate in.order to -save the estate from major tax liabilities and because he was prorpj~ed to be treat~d as though he had a 50% interest. Those tax liabil.ities would have also affected Plaintiffs alleged 50% interest The record, however, shows that Plaintiff sign,ed a IO-year employment agreement 3 Printed 12113/2018 [* 4] Pogo 341 ol 388 ~182/20 1 2AFFIRMATION IN OPPOSITION ""1th Barone Propeities, Inc. which showed a specified salary and was signed by the I· I I citpQration by Gilma Posada Barone as.owner and sole sb~eholder of the Corporation. At I tht- end of the period, renewal 10-ye~· employment contrnc;t was prepai;ed and signe.d in a ! . sinilar fashion . . Plaintiff asse1ts that ~otwitfistanding $e Wtitten contr~cts, his brot~er' s wrlow continued.the prior arrangement and paid bftn 50 % of the profits from the real estate busitless. It would appear thilt for whateyer reason, Piai.nt!ffwas motivated. to help the estate, It w.as not until some tpn.e thereafter that Defendant's conduct toward hltn changed as did Plaintiffs motivations. Collater&l estoppel preoludes a party from relitigating an i~sµe which has previously been decided against.him in .a proceedi11.g in which he had a fair opportunity to fully litigate the point. Schwartz v. Publ/(J°Adminis~ator of Cou.l!lt)I ofBronx, (24 NY2d 65, 71, 298 N.Y.S.2d 955 [1969]). To inv~ke the doctl.'in~. the issue .as to which. p.recl1,1sion is sought must be identical with the issu~ decided .or necessarily decided in-the prim' proceeding and the partY presently pi·ecl uded must have had a ·full and fair opportunity to contest the decision now said to b~ controlling. In Qilbef'gv Barbieri. 53 NYid 285, 441 N:Y.S.2d 49 (1981), the oourt held that .the earlier proceeding had to be as important and serious as the latter . . proceeding. Thas, the Court held that an ~arlier City Court trial re5ulting in a conviction .for harassment which is not a crime would not be held.as collateral estoppel for a later suit for· $250,000 in damages for civil assault. The Court of Appeals therefore held 4 Ponied 12113/201& [* 5] PlllO 342 ol 3&8 918212012 AFFIRMATION IN OPPOSITION ... ·.¥**that when collateral estoppel is:in issue, the qµestipn as to whether a party ha? a n.iu.and f~ir .opportunity to litigate a prior detennination, in~olves a practical inquiry into "the realities of litigation. A comprehensive list of th.e various fa~tors whi,.ch shQ1,1l.Q ~nter illt9 a. !ic;:~erm.ination whether a party.has had his day in court would include such considerations as. the size of;the claim, the forum oftl:ie prior litigation, the useofinitiative,; he t extent of the litigation, the competence and . experience of colll)Sef. the avl;\ilab.ility of new eviden.ce, indi.Cations..of a· comprom~ verdict, differen.e~ i.n th~ applicable law a_ d n foreseeabilicy o.f futju-e litigation" (see, al.so, Restatement, Jud~ents 2d [Tent Draft. No. 3], § 88). A consideration of those factors in this case.leads to th. conclilsion that the City e Court harassment conviction shpuld not be given conclusive · ·effect in the ·civii e:ction fen: damages. . rhere is no indication that Plaintiff was separatel~ represented by counsel in the Sttrogate~s Court ~roceeding. .F'.'urthermore, thei:e was no litigation ~d therefore no opportunity or need to. litigate tbe point'. Accotctingly,.like-the .s ltuatian ~ Gilb.ergvBarbier~· S3· NY~d 285, 441 N.Y.S.2d 49(1981), collateral estoppel will nc:rt be empioyed to bar Plaintiffs claim. The equitable clai!Jl for the imposition of'.a cpnstr:uctive trust is governed by the six- year Statute ofLimitations of CPLR 2.13 (1), which beg~s to~ at the thne of the alleged wrongfui co.ndu.c t, gtving rise to a duty ot resfitutiotl and not from the ti.me the f.acb constitu«ngthe .frau.d ·are discovered: Goco v. l?.amnani, 65.A.DJd 66~, 665, 883 N.Y. S.2d 919 (2d Dep 't~009); Mazzone·v Mazzone, 269 A.D.2d 574, 703 N.Y.S.2_ 282 (2d Dep't d 2000); Mattera v Matter.a, 125 A.D.2d 555, 556-557 (2d Dep't 1986). ~ere, the action was comnwnced mQre than six yecars after the allegeqly wrongful tlansfet of the property by the deed dated July 19, 1996. This action was not commenced until 2012. Accordingly; the first 5 Pr...., 1211J1201e [* 6] 9152/2012 AFFIRMATION IN OPPOSITION ". etuse ofac~on is dismissed as tiJne barred; Other grounds for dis1nissal of the first cause of altion are not addressed beeause they are m~»Ot. Wi~ r~gard to Plaintiff'~ Seco~d cause of action for an accounting. The "right to an a1eounting is"ptemised upon the existence of.a C.onfidential 9r fiduciary relationship and " a beach of the duty imposed by that relationship respecting property in which the party seking ~ accounting. has an iilterest." LoGelfo 11. Trustees of Columbia Univ. in City of .N1w York, 35 A.D.3d395, 827N.Y.S.2d166 (2d Dep't2006) (citations·omitted.)-Moreo-ver, a relationship providing for the division of prnfits will give rise to a fiduciary obligation -On. th part of the-parties wherether.e is.an agreement to also share losses. Id.At.this. early stage ofthe ~as.e this Court will allow th~ plaintiff to proeeed.on both legal and equitable causes of.ae_tion. Cottstruing the pleadings generQ~Jy ''to .allege. wqatev,~t can.be fairly implied on . . aio/ aspect of the facts,,, the compl(lint adequately states a cause pf a~on for ap accounting . . . (s~e Nastasi v Nast°:si, 26. AD3d32, 37, . 0.5 N1Y.S~d 585 (~d Dep't 2005]}. 8 The law js settled that in order to establish fraud. the .following elements must be · demertstrated: (l) mistepresent!ilion.o.f a mat~rilU fact; (2) scieote.r; (3) justifi.able reliance; a:nd (4)" injury or damages~ Gouldsbwy v Dan's Sup1~eme Supermarket, 154 AJ:?2d 509 (2d Dep't 1989,) (Iv denie~ 75 NY2d 701). Plaintiffs allegations in his complaint allege the existence of.a fraud, and consequently, ~he third cause of action stands. The fourth cause of action alleges a cause of action for unjust enrichment which · t defendant contends is _ime barred. "To state a cause ·o f action for unjust eprichment, a plaintiff must allege that it conferred a benefit upon the defendant, and that the defendant 6 [* 7] 918212012 AFFIRMATION IN OPPOSITlON .. ~. wU obtain such benefit without adequately tomp~nsating plaintiff therefor." (Nakamura· v FJiii, 2J3.AD2d 387, 390; see, Ml Property, Inc: v!rd Weirutei11 andLany Weinstein, LLC, 50 AD3d 751~ Smith v Chase Mcmhatta.n Bank, USA, N'.A .• 293 AD2d··598, 600, 741 a N.Y.S.2d. 100 [2d Dep't 2002]). The statute of limitations for claim of unjust enrichment is 6 years .pursuant to CPLR 213(1} Plaintiff alleges that notwithstanding the written contract between th.e parties, he was ·paid 50% of the inco~ from the runnbtg of the real estate business, but·that defendants thereafter failed and refused to pay him based on bis . . . alleged 50% ow11ership interest That cause of actiop runs frolJl the failure to pay which occurred within 6 yea-rs of the conunencement.of this actioo. ACC!Ordingly, the fourth cause ofaotion is sustained. . . With regard to Plaintiff'·S continued demand that he be providcd·accesg to contents . of cert~~.n file cabinets.is granted to tb.e ext~nt thatD~fendants $ball not dispose ofthem and sucJ:i papers and tlles shall be made available during discovery in this actiai} . . I PLR 3101 (a). Dat-ed: . anuary 23, 20~3 J 7 Pnnted 12113/2016

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