Gourary v Green

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Gourary v Green 2018 NY Slip Op 30568(U) March 28, 2018 Supreme Court, New York County Docket Number: 651932/2010 Judge: Saliann Scarpulla Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 04/02/2018 02:52 PM 1] NYSCEF DOC. NO. 316 INDEX NO. 651932/2010 RECEIVED NYSCEF: 04/02/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 39 -----------------------------------------------------------------------------------X JOHN P. GOURARY, AS LIMITED ADMINISTRATOR C.T.A. OF THE ESTATE OF PAUL GOURARY, Plaintiff, INDEX NO. 651932/2010 MOTION DATE MOTION SEQ. NO. -vALICE GREEN, AS EXECUTOR OF THE ESTATE OF PAUL GREEN, ELIZABETH LASTER, AS EXECUTOR OF THE ESTATE OF OLIVER LASTER, SCOTT MACOMBER, GREEN & ETTINGER, 004 DECISION AND ORDER Defendants. -----------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number 297, 298, 299, 300, 301, 311, 312, 313, 314 were read on this application to/for REARGUMENT/RECONSI DERATION HON. SALIANN SCARPULLA: In this action for alleged breach of fiduciary duty and fraudulent concealment, plaintiff John P. Gourary, as Limited Administrator c.t.a. of the estate of Paul Gourary's ("Gourary") moves by order to show cause seeking leave to reargue this Court's decision and order dated October 13, 2017, in which I dismissed the complaint and denied Guarary's request to seek leave to amend the complaint. Guarary argues that I: (1) overlooked and misapprehended key facts and misapplied the doctrine of constructive fraud in dismissing the causes of action for fraudulent concealment and civil conspiracy to commit fraudulent concealment; and (2) overlooked and misapprehended key facts in dismissing the portions of the causes of action for breach of fiduciary duty and aiding and 651932/2010 GOURARY, JOHN P. vs. GREEN, ALICE Motion No. 004 Page 1of4 1 of 4 [*FILED: NEW YORK COUNTY CLERK 04/02/2018 02:52 PM 2] NYSCEF DOC. NO. 316 INDEX NO. 651932/2010 RECEIVED NYSCEF: 04/02/2018 abetting breach of fiduciary duty that were based upon New York Business Corporation Law ("BCL") §713. 1 The underlying facts of this case have been set forth in detail in previous decisions in this action and will not be repeated herein. See Gourary v. Greer], 143 AD3d 580 (1st Dept 2016); Gourary v. Green, 2017 WL 4569716 (Sup Ct, NY County 2017); Gourary v. Green, 2016 WL 184532 (Sup Ct, NY County 2016); Gourary v. Green, 2013 WL 11012084 (Sup Ct, NY County 2013). Discussion In a motion seeking leave to reargue pursuant to CPLR 2221 (d), the movant must establish that the court "overlooked or misapprehended the facts or law in arriving at its earlier decision." Opton Handler Gottlieb Feiler Landau & Hirsch v Patel, 203 AD2d 72, 74 (1st Dept 1994) (internal citations omitted). Absent mistake on the court's part, the Court will adhere to its original decision - "[ r]eargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided ... or to present arguments different from those originally asserted." Setters v Al Properties and Developments (USA) Corp., 139 AD3d 492, 492 (1st Dept 2016) quoting William P. Pahl Equipment Corp. v. Kassis, 182 A.D.2d 22, 27 (1st Dept 1992). Gourary's argument here is virtually the same argument made on the original motion. Gourary's claims for breach of fiduciary duty (aside from any breach arising out of the alleged BCL § 713 violation), aiding and abetting a breach of fiduciary duty, and 1 Gourary also filed a notice of appeal on November 13, 2017. 651932/2010 GOURARY, JOHN P. vs. GREEN, ALICE Motion No. 004 Page 2 of 4 2 of 4 [*FILED: NEW YORK COUNTY CLERK 04/02/2018 02:52 PM 3] NYSCEF DOC. NO. 316 INDEX NO. 651932/2010 RECEIVED NYSCEF: 04/02/2018 fraudulent concealment are all grounded on the premise that defendant Oliver Laster's ("Laster") failure to disclose material information regarding the underlying transaction to Gourary caused damage to Gourary. The complaint alleges that Paul Green ("Green"), Gourary's attorney who represented him in the underlying transaction, also had complete knowledge of the material information that Laster allegedly failed to disclose to Gourary. In the October 13, 2017 decision and order - based on the Appellate Division, First Department's prior decision in this action, Gourary v. Green, 143 AD3d 580 (1st Dept 2016) - I found that Green's knowledge of the material facts regarding the underlying transaction were imputed to Gourary and that Gourary cannot avoid imputation by claiming the adverse interest exception. Because of this imputation of knowledge to Gourary, I dismissed these claims for failure to state a cause of action because Laster's failure to disclose material facts could not have been the proximate cause of any injury to Gourary. Gourary argues here that I erred in finding that Green's knowledge is imputed to Gourary, because any information that Green may have learned from Lester might be confidential if that information was obtained through his representation of Laster. However, my October 13, 2017 decision and order already addressed this argument, and Gourary fails to demonstrate that I overlooked or misapprehended the relevant facts or law. Instead, Gourary simply disagrees with my conclusion. I have also reviewed Gourary's remaining arguments and find that they do not warrant the grant of reargument. In accordance with the foregoing, it is hereby 651932/2010 GOURARY, JOHN P'. vs. GREEN, ALICE Motion No. 004 Page 3 of 4 3 of 4 [*FILED: NEW YORK COUNTY CLERK 04/02/2018 02:52 PM 4] NYSCEF DOC. NO. 316 INDEX NO. 651932/2010 RECEIVED NYSCEF: 04/02/2018 ORDERED that plaintiff John P. Gourary, as Limited Administrator c.t.a. of the estate of Paul Gourary's motion for leave to reargue is denied in its entirety. This constitutes the decision and order of the court. DATE CHECK ONE: CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: DO NOT POST FIDUCIARY APPOINTMENT 651932/2010 GOURARY, JOHN P. vs. GREEN, ALICE Motion No. 004 D OTHER D REFERENCE Page 4 of4 4 of 4

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