Metropolitan Bank & Trust Co. v Lopez

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Metropolitan Bank & Trust Co. v Lopez 2020 NY Slip Op 30195(U) January 8, 2020 Supreme Court, New York County Docket Number: 159395/17 Judge: Doris Ling-Cohan 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. [* 1] INDEX NO. 159395/2017 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 01/27/2020 SUPREME COURT OF THE STATE OF N W YORK COUNTY OF NEW YORK: IAS PART 36 ------------------------------------------------------- -----------)( METROPOLITAN BANK & TRUST CO., Plaintiff, Index No. 159395117 -against- Mott n Seq. No.: 002, 003 MA. VICTORIA ''MARIVIC" S. LOPEZ, L RENZO VILLEGAS LOPEZ and MARIE STA. ANA LOPEZ NIKIA LORAINNE MARIES. LOPEZ LA ON, Defendants. ------------------------------------------------------ ------------)( The following e-filed documents, listed by NYSC F document number (Motion 02) 12, 13, 14, 15, 17, 18, 19, 20, 23, 56, 86 were read on this motion to/for The following e-filed documents, listed by NYSC F document number (Motion 003) 28, 29, 30, 31, 32. 33, 34, 35, 36, 37, 38, 39 , 40, 41 , 42, 43, 44, 45, 46, 7, 48, 49, 50, 51 , 52, 53, 54, 57, 87 were read on this motion to/for ORDER OF PROTECTION DORIS LING-COHAN, J.: Motion sequence numbers 002 and 0 3 are consolidated for sequence number 002, defendant Marie Sta. disp~sition. Jn motion na Lopez n/k/a Lorainne tytarie S. Lopez Lannon (Lannon) moves. pursuant to CPLR 3211 (a)i(7), to dismiss the complaint, as to her, and, pursuant to CPLR 6501 , to cancel a notice o pendency that was filed by plaintiff. In motion -1- 1 of 5 [* 2] INDEX NO. 159395/2017 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 01/27/2020 sequence number 003, Lannon moves, pursu t to CPLR 1001 (a) and 3103 (a), for a protective order, and plaintiff Metropolitan Bank & Tru t Co. (Bank) cross-moves Io compel discovery. 1 This action arises from an alleged six een-year scheme by Lanno 'smother that embezzled up to $17.5 mi II ion from the Ba , by which she was emplord in the Phi Ii ppi nes. Lannon's mother is currently incarcerated in he Philippines, awaiting trial, having been denied bail. The complaint in this action alleges tha Lannon, her mother, and 1er father, defendant Lorenzo Villegas Lopez, have colluded in an attempt to place proceeds df their wife's and mother's alleged crime beyond the reach oft e Bank. Most pertinently, with regard to Lannon, t~e building located at the complaint alleges that her father bought er a condominium unit in 225 East 34th Street in Manhattan, which sh , shortly thereafter, put on the market. The complaint alleges the following ur causes of action: (1) co~version; (2) unjust enrichment; (3) request for imposition of a c nstructive trust; and (4) request for an accounting. These will be discussed in turn. 11 The cause of action alleging conversi n fails, because, in order rt such a claim to be applied to a sum of money, the money must e 'a specific sum of mone~hat [is] subject to a future obligation.'' Markov v Spectrum Gro citing Mam!facturers Hanover Trust Co. v i.p Intl., Inc., 136 AD3d 41 J 414 (1st Dept 2016), emica/ Bank, 160 AD2d 1113, 124-125 (1st Dept 1990). Here, the complaint identifies no sue specific sum of money. While the complaint alleges that the Bank ascertained that a total f Php 583,528,392.85 was stolen by Lannon 's mother (complaint, ~ 18), it does not allege t at Lannon exercised una utorized do mini on over 1 The Court notes that it attempted t settle this matter with the appearances. -2- 2 of 5 ~arties at several Court [* 3] INDEX NO. 159395/2017 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 01/27/2020 that sum. Indeed, the complaint alleges that is investigation found that ~non's mother transferred the money that she allegedly emb zzled "to her husband, Mr. ILopez, her daughter, her two other children ... as well as other relativ s." Complaint~ 30. The identifiable sum of money that a claim of conversion seeks to re over must be in the possesJion of the defendant. See Lucker v Bayside Cemetery, 114 AD3d 1 2, 174 (1st Dept 2013); Binkers Trust Co. v Cerrato, Sweeny, Cohn, Stahl & Vaccaro , 18 AD2d 384, 385 (1st Dept 1992). The complaint identifies no such sum. Unjust enrichment is a quasi-contract al "theory of recovery and 'is an obligation imposed by equity to prevent injustice in the bsence of an actual agree1ent between the parties."' Federated Fire Protection Sys. C p. v 56 Leonard St., LLC, 70 AD3d 432, 433 (1st Dept 2019, quoting Georgia Malone & Co. l Rieder, 86 AD3d 406, 40$ (1st Dept 2011), affdl 19 NY3d 511, 516 (2012 ). While part es need not be in privity fof one of them to invoke unjust enrichment, their relationship cannot e "too attenuated." PhilipJ lnt.. Jnv. , LLC v Pektor. 117 AD3d I , 3 (1st Dept 2014), quoting Ge rgia Malone, 19 NY3d at ~ 17. Herc, the Bank and Lannon are strangers to each other, and hav not engaged in any transacpon that could give rise to a quasi contractual remedy. A constructive trust may be imposed upon property, when the rdllowing conditions have been met: (I) a confidential or fiduciary rel ionship; (2) a promise or aFreement, express or implied; (3) a transfer in reliance upon the a reement; (4) breach of that promise; and (5) unjust enrichment. Palazzo v Palazzo, 121 AD2d 261, 263 (2d Dept 1986), citing Sharp v Kosmalski, 40 NY2d 119, 121 (1976); see also Jacobs Cartalemi, 156 AD3d 635~ 638 (2nd Dept 2017). Here, as already noted, the Bank and Lanno are strangers to each other. Moreover, the Bank -3- 3 of 5 [* 4] INDEX NO. 159395/2017 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 01/27/2020 alleges neither a promise made to it by Lanno , nor a transfer made in re*ance upon such a promise. To be sure, a promise may be impli d by the nature of a confidfntial relationship between the parties, Sharp 40 NY2d at 122. ere, however, there is no such relationship. Finally, the Bank is not entitled to an ccounting, because such rdmedy is available only where, unlike here, the parties are in a confid ntial or fiduciary relations~ip. Saunders v AOL, Time Warner, Inc., 18 AD3d 216, 217 (1st D pt 2005). The Court has examined the Bank's scovery request that is the subject of the motion and cross motion in motion sequence numbe 003. None of the informa~ion sought by the Bank can cure the infirmities of the causes of actio alleged in its complaint. t ccordingly, the Court dismisses the complaint as against Lannon, j ith prejudice. The Bank's notice of pendency was i properly :filed, inasmuch 1s the Bank does not assert title to, or possession of, Lannon's ap ment. CPLR 6501; Roser Monti Assets, 250 AD2d 451 , 451 (1st Dept 1998); see also P Rest., LLC v Lifshutz, 138 AD3d 434, 439 (1st Dept 2016). j Accordingly, it is hereby ORDERED that, in motion sequence number 002, the motion o defendant Marie Sta. Ana Lopez n/k/a Lorainne Marie S. Lopez L non for an order dismissing the complaint as to her is granted and the complaint is severed and ismissed as against said derendant with prejudice, and with costs and disbursements as taxed b the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further ORDERED that the notice of pende cy filed by plaintiffMetro~ol i tan Bank & Trust Co., dated October 23, 2017, is cancelled; and it s further -4- 4 of 5 I [* 5] INDEX NO. 159395/2017 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 01/27/2020 ORDERED that, in motion sequence umber 003, the motion of qefcndant Marie Sta. Ana Lopez n/k/a Lorraine Marie S. Lopez La on and the cross motion of plaintiff Metropolitan Bank & Trust Co. are denied as moot; and it i ORDERED that this case is severed a d shall continue as to the remaining defendants; and it is further ORDERED that within 30 days of ent of this order, defendant shall serve a copy of this order, with notice of entry, upon all parties. Dated: January 8, 2020 Hon Doris Ling-Cphan, J.S.C. I CHECK ONE: ASE DISPOSED RANTED APPLICATION: CHECK IF APPROPRIATE: ON-FINAL DISPOSITION ENIEO NCLUDES TRANSFER/R ASSIGN J:\Judge_Ling-Cohan\Dismiss\Metropolitan 13ank v Lannon.wpd RANTED IN PART DTHER UBMITORDER ETILEORDER cherniak.wpd -5- 5 of 5 IDUCIARY APPOIN~MENT DEFERENCE

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