Ginellen Racing, Inc. v Szarmach

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[*1] Ginellen Racing, Inc. v Szarmach 2019 NY Slip Op 50112(U) Decided on January 24, 2019 Supreme Court, Washington County Muller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 24, 2019
Supreme Court, Washington County

Ginellen Racing, Inc., Emerald Isle Farm, Inc. and James P. Curran, Plaintiffs,

against

Deirdra Szarmach, Defendant.



28135



William C. McCulloh, West Babylon, for plaintiffs Ginellen Racing Inc. and Emerald Isle Farm, Inc.

James P. Curran, plaintiff pro se.

Pinks, Lipshie, White & Nemeth, Hauppauge (Teresa A. White of counsel) and Dreyer Boyajian, LLP, Albany (John J. Dowd of counsel), for defendant.
Robert J. Muller, J.

Plaintiff Ginellen Racing, Inc. (hereinafter Ginellen Racing) breeds and races thoroughbred horses. In April 2016, defendant allegedly acquired a one-half ownership interest in two thoroughbred horses, Antiguan Princess and Wadadli Princess, with Ginellen Racing having the other one-half ownership interest in the horses. In or around May 2016, defendant allegedly acquired a one-third ownership interest in the thoroughbred horse Emerald Quality, with Ginellen Racing also having a one-third ownership interest in the horse. In January 2017 and May 2017, respectively, defendant allegedly acquired one-half ownership interests in the thoroughbred horses Quiet Mover and Portera 2017.

On July 29, 2017, Ginellen Racing and defendant executed a "Partnership Agreement" relative to their shared ownership of Antiguan Princess and Wadadli Princess. Plaintiff James Curran signed this Agreement on behalf of Ginellen Racing.[FN1] The parties' relationship apparently [*2]deteriorated shortly thereafter and, on August 29, 2017, defendant sent a text message to Curran "demand[ing that] all her interests [in the racehorses] be terminated."

This action was commenced by Ginellen Racing, Curran and plaintiff Emerald Isle Farm, Inc. (hereinafter Emerald Isle) against defendant on December 4, 2017. Plaintiffs allege fifteen causes of action:

(1) Ginellen Racing is entitled to damages in the amount of $4,128.05, plus interest from September 1, 2017, because it was forced to pay defendant's one-third of the monthly expenses for Emerald Quality;(2) Ginellen Racing is entitled to future damages in the amount of $6,890.00 because it will be forced to pay defendant's one-third of the expenses for Emerald Quality until the horse is sold, claimed or retired;(3) Emerald Isle and Curran are entitled to damages in the amount of $7,644.18, plus interest from June 1, 2016, because defendant failed to pay her half of the cost of the expenses for Wadadli Princess from June 1, 2016 to July 31, 2017;(4) Emerald Isle and Curran are entitled to damages in the amount of $10,256.01, plus interest from June 1, 2016, because defendant failed to pay her half of the cost of the expenses for Antiguan Princess from June 1, 2016 to July 31, 2017;(5) Ginellen Racing is entitled to damages under the terms of the Partnership Agreement in the amount of $3,281.15, plus interest from August 1, 2017, because defendant failed to pay her half of the monthly invoices sent by Webb Carroll Training Center and Southern Equine Services relative to services provided to Wadadli Princess from August 2017 to November 2017;(6) Ginellen Racing is entitled to damages under the terms of the Partnership Agreement in the amount of $3,281.15, plus interest from August 1, 2017, because defendant failed to pay her half of the monthly invoices sent by Webb Carroll Training Center and Southern Equine Services relative to services provided to Antiguan Princess from August 2017 to November 2017;(7) Ginellen Racing is entitled to future damages under the terms of the Partnership Agreement in the amount of $13,162.50 because defendant's obligations relative to Wadadli Princess continue until the horse is sold, claimed or retired;(8) Ginellen Racing is entitled to future damages under the terms of the Partnership Agreement in the amount of $13,162.50 because defendant's obligations relative to Antiguan Princess continue until the horse is sold, claimed or retired;(9) Ginellen Racing is entitled to a judgment under the terms of the Partnership Agreement declaring that defendant has forfeited her one-half ownership interest in Wadadli Princess;(10) Ginellen Racing is entitled to a judgment under the terms of the Partnership Agreement declaring that defendant has forfeited her one-half ownership interest in Antiguan Princess;(11) Emerald Isle and Curran are entitled to damages in the amount of 1,801.06, plus [*3]interest from May 1, 2017, because defendant has failed to pay her half of the expenses for Portera 2017 from May 1, 2017 to November 28, 2017;(12) Emerald Isle and Curran are entitled to future damages in the amount of $3,629.50 because defendant's obligation to pay one-half of the expenses for Portera 2017 continues until the horse is sold;(13) Ginellen Racing is entitled to damages in the amount of $1,657.41 because it was forced to pay defendant's half of the cost of the attempted sale of Portera 2017 at the Fasig Tipton Saratoga Fall Sale on October 16, 2017;(14)[FN2]Emerald Isle and Curran are entitled to damages in the amount of $2,782.00 because defendant has failed to pay her half of the expenses for Quiet Mover from June 1, 2017 to November 28, 2017; and (15) Ginellen Racing and Curran are entitled to damages in the amount of $3,180.00 because defendant has failed to pay her half of a stud fee due and owing for Quiet Mover.

Issue has been joined with defendant asserting several counterclaims. Presently before the Court is defendant's motion to dismiss the complaint for failure to state a cause of action (see CPLR 3211 [7]).

"On a motion to dismiss for failure to state a cause of action, [the Court] must 'afford the pleadings a liberal construction, accept the facts alleged therein as true, accord . . . plaintiff[s] the benefit of every possible inference and determine whether the facts alleged fit within any cognizable legal theory'" (Nelson v Capital Cardiology Assoc., P.C., 97 AD3d 1072, 1073 [2012], quoting Matter of Upstate Land & Props., LLC v. Town of Bethel, 74 AD3d 1450, 1452 [2010]). The Court is "permitted to consider affidavits submitted . . . to remedy any defects in the . . . complaint because the dispositive inquiry is whether [plaintiffs] 'ha[ve] a cause of action, not whether [they] ha[ve] stated one'" (Muncil v Widmir Inn Rest. Corp., 155 AD3d 1402, 1403 [2017], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994 [internal quotation marks and citation omitted]; see Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 52 [2016]).

At the outset, defendant contends that the third, fourth, eleventh, twelfth and fourteenth causes of action must be dismissed because plaintiffs have failed to allege that Emerald Isle and Curran have any ownership interest in any of the thoroughbred horses at issue in this action.

Turning first to the third and fourth causes of action, even accepting the facts alleged as true, there is simply no basis upon which to award Emerald Isle and Curran damages as a result of defendant's failure to pay expenses for Wadadli Princess. The complaint alleges that Wadadli Princess is owned by Ginellen Racing and defendant — there is no allegation that Emerald Isle or Curran have any ownership interest in Wadadli Princess, or any of the other horses involved in this action. Indeed, even after an exhaustive review of the complaint and the affirmation submitted by Curran in opposition to the motion, it is still entirely unclear what type of business Emerald Isle is or how it is involved in this action. It is similarly unclear how Curran is involved with either Emerald Isle or Ginellen Racing. While he signed the Partnership Agreement on behalf of Ginellen, nowhere does it indicate whether he is a principal or a member of the [*4]corporation. The complaint merely alleges as follows:

"Plaintiff GINELLEN RACING, INC., is now and at all times mentioned herein is a corporation incorporated in the State of New York with a principal place of business in Washington County, New York."Plaintiff EMERALD ISLE FARM, INC., is now and at all times mentioned herein is a corporation incorporated in the State of New York with a principal place of business in Washington County, New York."

Moreover, there is no allegation that Emerald Isle or Curran paid defendant's half of the cost of boarding, veterinary, maintenance, insurance and transportation expenses for Wadadli Princess from June 1, 2016 to July 31, 2017. Emerald Isle and Curran appear to have nothing whatsoever to do with Wadadli Princess. Under these circumstances, defendant is entitled to dismissal of the third and fourth causes of action.

Turning now to the eleventh and twelfth causes of action, there is again no basis upon which to award Emerald Isle and Curran damages as a result of defendant's failure to pay expenses for Portera 2017. While the complaint alleges that defendant has a one-half ownership interest in Portera 2017, it is entirely silent as to who has the other one-half ownership interest in the horse.[FN3] The affirmation submitted by Curran in opposition to the motion again fails to identify who has the other one-half ownership interest; the information is nowhere in the record. Furthermore, there is no allegation that Emerald Isle or Curran paid defendant's portion of the cost of boarding, veterinary, maintenance, insurance and transportation expenses for Portera 2017 from May 1, 2017 to November 28, 2017 — nor that either has paid for any expenses since that time. Defendant is therefore entitled to dismissal of the eleventh and twelfth causes of action.

Finally, the factual allegations underlying the fourteenth cause of action — or lack thereof — are much like those underlying the eleventh and twelfth causes of action. While the complaint alleges that defendant has a one-half ownership interest in Quiet Mover, it makes no mention of who has the other one-half ownership interest in the horse and it fails to allege that Emerald Isle or Curran paid defendant's half of the boarding, veterinary and maintenance expenses for Quiet Mover from June 1, 2017 to November 28, 2017. These defects are not remedied anywhere in the record. Defendant is thus entitled to dismissal of the fourteenth cause of action as well.

Defendant next contends that the first, second, thirteenth and fifteenth causes of action must be dismissed because plaintiffs have failed to properly plead breach of contract.

A breach of contract cause of action "requires allegations of 'an agreement, performance by one party, failure to perform by the other party and resulting damages'" (Muncil v Widmir Inn Rest. Corp., 155 AD3d at 1404, quoting Hyman v Schwartz, 127 AD3d 1281, 1283 [2015]; see Torok v Moore's Flatwork & Founds., LLC, 106 AD3d 1421, 1422 [2013]; Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1055 [2009]).

The first cause of action alleges that "[p]ursuant to the parties' agreement [d]efendant . . . has failed and refused to pay monthly training and other expenses for Emerald Quality . . . for the [*5]months of September, October and November 2017." It further alleges that "as a result of [defendant's] default, . . . Ginellen Racing, Inc. has been forced to pay [defendant's] one-third of expenses in the amount of $4,128.05." While the first cause of action does not expressly allege performance on the part of Ginellen, performance on Ginellen's part is certainly suggested based upon its alleged conduct in paying defendant's one-third of the expenses for Emerald Quality. More notably, Curran states as follows in his affirmation in opposition to the motion:

"Defendant was always sent billing statements by Ginellen Racing for Emerald Quality, as Ginellen Racing paid the trainer monthly so the trainer did not have to wait to be paid by [d]efendant. As [d]efendant has and had a history of delayed payments Ginellen Racing paid the trainer and billed [d]efendant."

Affording the complaint a liberal construction and accepting the facts alleged therein as true, the first cause of action sufficiently pleads breach of contract.[FN4]

The second cause of action is an extension of the first, seeking "future damages in the amount of $6,890.00" for defendant's one-third of the expenses for Emerald Quality until the horse is sold, claimed or retired. While defendant contends that this request for future damages is speculative, I disagree. Notwithstanding its use of the term "future damages," it appears that Ginellen Racing is in fact seeking damages for those amounts paid subsequent to November 2017 — which are not speculative, at least not those paid to date. To that end, the second cause of action also sufficiently pleads breach of contract.

Turning now to the thirteenth cause of action, this cause of action alleges that "[b]ased upon [defendant's] request Portera 2017 was placed in the Fasig Tipton Saratoga Fall Sale held [on] October 16, 2017," resulting in "[c]osts in the amount of $3,314.83." It further alleges that defendant "refused to pay her half of the Portera 2017 sale expenses," which were "paid in full by Ginellen Racing." Notably missing from this cause of action is the existence of any agreement between the parties. Indeed, as already observed, the complaint simply states that defendant has a one-half ownership interest in Portera 2017 without indicating who has the other one-half ownership interest. Even accepting the facts alleged as true, the thirteenth cause of action fails to sufficiently plead breach of contract and must be dismissed.

The fifteenth cause of action alleges that "the Broodmare Quiet [Mover is] in foal to the sire Tapiture, with a due date on or about March 20, 2018[, and t]he stud fee due and owing for [the] mating . . . is $6,360.00." It further alleges that defendant "is responsible for one-half of the . . . stud fee" and then requests that Curran and Ginellen Racing be awarded damages in the amount of $3,180.00. Again, there is no allegation of any agreement between the parties. While the complaint alleges that defendant has a one-half ownership interest in Quiet Mover, it makes no mention of who has the other one-half ownership interest. The fifteenth cause of action therefore fails to sufficiently plead breach of contract and must also be dismissed.

Defendant next contends that the fifth, sixth, seventh, eighth, ninth and tenth causes of action — all of which are based upon the Partnership Agreement — must be dismissed because there has not yet been an accounting.

"[A]s a general rule, 'partners cannot sue each other at law unless there is an accounting, prior settlement, or adjustment of the partnership affairs'" (Non-Linear Trading Co. v Braddis Assoc., 243 AD2d 107, 115 [1998], quoting Agrawal v Razgaitis, 149 AD2d 390, 390 [1989], accord Morris v Crawford, 281 AD2d 805, 806 [2001]). "It is well established that an action at law may not be maintained by one partner against another for any claim arising out of the partnership until there has been a full accounting except where the alleged wrong involves a partnership transaction which can be determined without an examination of the partnership accounts" (Non-Linear Trading Co. v Braddis Assoc., 243 AD2d at 115; see Kriegsman v Kraus, Ostreicher & Co., 126 AD2d 489, 490 [1987]).

Here, Curran states as follows in opposition to the motion:

"I would submit to the Court that there are no affairs to wind up. In this case, . . . with the exception of [paying] transportation expenses of [Wadadli Princess and Antiguan Princess] to South Carolina, not a single obligation under the Agreement was performed by [d]efendant. All expenses of the horses were paid by Ginellen Racing . . . ."

Under the circumstances, the allegations contained within the fifth, sixth, seventh, eighth, ninth and tenth causes of action do not require an examination of the books, records and accounts of the partnership. The partnership was only intact for approximately one month, with the Partnership Agreement signed on July 29, 2017 and defendant advising of her intention to terminate it on August 29, 2017. Further, the accounts of the partnership contain nothing more than the expenses paid by Ginellen Racing for the horses — and perhaps any money won as a result of racing.

Finally, defendant contends that the fifth, sixth, seventh and eighth causes of action must be dismissed because they fail to sufficiently plead breach of the Partnership Agreement.

"A partnership dissolves when there is a change in the relationship between the partners caused by one partner who no longer associates with the purposes of the partnership" (Gardiner Intl., Inc. v J.W. Townsend & Assoc., Inc., 13 AD3d 246, 247 [2004]; see Partnership Law § 60). "[T]he partnership may be dissolved at any time by any partner" (Gardiner Intl., Inc. v J.W. Townsend & Assoc., Inc., 13 AD3d at 247). "However, it renders a partner who breaches the agreement subject to a claim for damages for breach of contract by a partner who does not wrongfully cause the dissolution" (id.; see Napoli v Domnitch, 18 AD2d 707, 708 [1962], affd 14 NY2d 508 [1964]). As set forth above, a breach of contract cause of action requires allegations of an agreement, performance by one party, failure to perform by the other party and resulting damages (see Muncil v Widmir Inn Rest. Corp., 155 AD3d at 1404; Hyman v Schwartz, 127 AD3d at 1283; Torok v Moore's Flatwork & Founds., LLC, 106 AD3d at 1422; Clearmont Prop., LLC v Eisner, 58 AD3d at 1055).

The fifth and sixth causes of action allege that, pursuant to the Partnership Agreement, defendant was "responsible for one-half of all training, maintenance, veterinary, transportation and insurance expenses" of Wadadli Princess and Antiguan Princess. These causes of action further allege that defendant refused to pay these expenses from August 2017 to November 2017 and damages in the amount of $3,281.15 is sought relative to each horse. While the causes of action do not allege performance on the part of Ginellen Racing, Curran states as follows in opposition to the motion:

"Ginellen Racing at this point has been forced to pay not only [its] share of the training [*6]and vet expenses for the two horses, but also the entire amount of [d]efendant's share of the training expenses and vet expenses through July 1, 2018."

Affording the complaint a liberal construction and accepting the facts alleged therein as true, the fifth and sixth causes of action sufficiently plead breach of the Partnership Agreement.

The seventh and eighth causes of action are extensions of the fifth and sixth, seeking "future damages for training in the amount of $13,162.50" for Wadadli Princess and Antiguan Princess, respectively. While defendant contends that these requests are speculative, this contention is without merit. Again, notwithstanding its use of the term "future damages," it appears that Ginellen Racing is in fact seeking damages for those amounts paid subsequent to November 2017 — which are not speculative, at least not those paid to date. The seventh and eighth cause of action also sufficiently plead breach of the Partnership Agreement.

Therefore, having considered the Affirmation of Teresa A. White, Esq., dated July 25, 2018, together with exhibits "A" through "D" attached thereto; the opposing Affirmation of James P. Curran, Esq., dated August 22, 2018, together with Exhibits "A" through "I" attached thereto; and the Reply Affirmation of Teresa A. White, Esq., dated August 28, 2018, and having heard oral argument on January 14, 2019 with David D. Bobick, Esq. appearing on behalf of Ginellen Racing and Emerald Isle, James P. Curran, Esq. appearing pro se and John J. Dowd, Esq. appearing on behalf of defendant, it is hereby

ORDERED that defendant's motion to dismiss is granted with respect to the third, fourth, eleventh, twelfth, thirteenth, fourteenth and fifteenth causes of action, and the motion is otherwise denied; and it is further

ORDERED that any relief not specifically granted has nonetheless been considered and is denied.

The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated July 25, 2018. Counsel for defendant is directed to obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.



Dated: January 24, 2019

Lake George, New York

ROBERT J. MULLER, J.S.C. Footnotes

Footnote 1:It appears that defendant is a social acquaintance of Curran and his wife. Curran—an attorney—also represented defendant relative to her divorce in 2013. While defendant has raised certain issues regarding the propriety of the parties' business relationship in view of this representation, such issues are not relevant to the instant motion.

Footnote 2:The complaint contains two "thirteenth" causes of action followed by a "fifteenth" cause of action. For purposes of this Decision and Order, the second "thirteenth" cause of action is deemed the "fourteenth" cause of action.

Footnote 3:The complaint in fact creates confusion as to who owns the other one-half interest in Portera 2017. The eleventh, twelfth and thirteenth causes of action all pertain to Portera 2017 and, while the eleventh and twelfth causes of action seek damages on behalf of Curran and Emerald Isle, the thirteenth seeks damages on behalf of Ginellen Racing.

Footnote 4:It is noted that — while the complaint indicates that Ginellen Racing and defendant each have a one-third ownership interest in Emerald Quality — it fails to indicate who owns the other one-third ownership interest.