Roumila v Christie's Intl. Real Estate Group, Inc.

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Roumila v Christie's Intl. Real Estate Group, Inc. 2020 NY Slip Op 33043(U) September 16, 2020 Supreme Court, New York County Docket Number: 162223/2018 Judge: Debra A. James 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. 162223/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 09/16/2020 SUPREME COURT OF THE STATE OF NEW YORK NEWYORK COUNTY PRESENT: lAS MOTION 59EFM PART HON. DEBRA A. JAMES Justice -------------------------------------------------------------------~---------- X INDEX NO. REGIS ROUMILA, 162223/2018 MOTION DATE Plaintiff, 10/29/2019 MOTION SEQ. NO. 002 - vCHRISTIE'S INTERNATIONAL REAL ESTATE GROUP, INC.,SARINE ATAMIAN, and KATHY COUMOU, DECISION + ORDER ON -MOTION Defendants. ------------------=-------------------------------------------------------The following e-filed documents, 49,50,51,52,53,54,55,56,57, X listed by NYSCEF document number (Motion 002) 43, 44, 45, 46, 48, 58, 59,60,61,62,63,64,65,66,67,69, 70, 71, 73 were read.on this motion to/for DISMISS ORDER Upon the foregoing ORDERED that the motion ninth cause of action defendants Sarine Atamian of contract Real Estate Group, thirteenth, fourteenth, of action defendants; ORDERED it is hereby is granted is dismissed repudiation causes documents, to the extent in its entirety and Kathy Coumu, as to defendant are dismissed as to and only as to Christie's Inc., and the tenth, eleventh, fifteenth, that the sixteenth, International twelfth, and seventeenth in their entirety against all is severed and and it is further that the remainder shall continue; of the action and it is further 162223/2018 ROUMILA, REGIS VS. CHRISTIE'S INTERNATIONAL Motion No. 002 1 of 12 Page 1 of 12 [* 2] INDEX NO. 162223/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 09/16/2020 ORDERED that defendants are directed to serve an answer to I the Amended Complaint within with notice of entry; and it is further ORDER~D - preliminary discovery are directed discovery conference conference counter to submit a proposed order or proposed order by sending order to the lAS Part 59 e-mail account (59nyef@nyco~rts.gov) October of this order ' '. that counsel 20 days after service preliminary such proposed box and filing with NYSCEF on or before 23, 2020. DECISION Defendants, Inc. ("CIREU), Christie's Sarine Atamian, to CPLR 3211(a) (1) and seventeenth International causes and Kathy Coumou, (7), to dismiss of action Real Estate Group, move, pursuant the ninth through in the Amended Complaint. Background Plaintiff, recover damages Regis Roumila, from defendants of contract against the Amended Complaint Plaintiff New York. CIRE. CIRE. real estate broker and Kathy Coumou serves as Business serves as Executive 162223/2018 ROUMILA, REGIS Motion No. 002 VS. CHRISTIE'S seeking for, among other things, The factual allegations is a licensed Sarine Atamian this action (NYSCEF Doc. No. 19) include Sarine Atamian Kathy Coumou commenced to breach set forth in as follows. in the State of are employees Operations of Manager, and Director. INTERNATIONAL 2 of 12 Page 2 of 12 [* 3] INDEX NO. 162223/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 09/16/2020 On August Estate 9, 2018, plaintiff Salesperson ("Salesperson Agreement Agreement"), and CIRE entered (Independent pursuant NYSCEF Agreement Doc. No.8). Contractor) to which plaintiff work for CIRE as a real estate broker Agreement, into a Real for 6 years Section agreed to (Salesperson 3.05 of the Salesperson states: "Salesperson shall work under the supervision of Corporate Broker and shall work collaboratively with other brokers and managers associated with Corporate Broker as required by Section 441 of the Real Property Law and Section 175.21 of the Real Estate License Law, such supervision to include: (i) regular, frequent and consistent personal guidance; (ii) instruction; (iii) oversight and superintendency with respect to the Brokerage BuSiness conducted by the Corporate Broker; (iv) maintenance of written records of all listings obtained by Salesperson, including all sales transactions effectuated with the assi"stance of Salesperson during the period of such Salesperson's association with the Corporate Broker, and which clearly identify the transactions and indicate the dates thereof" (id.) . In addition, any breach ~7.02 states that "[i]f Salesperson of the terms hereof, business in accordance Broker's policies be entitled immediately, with applicable or business to terminate plaintiff that it Agreement due to employee 162223/2018 ROUMILA, Motion No. 002 procedures, intended REGIS vs. CHRISTIE'S Corporate complaints 3 of 12 shall (id.) 10, 2018, CIRE notified to terminate INTERNATIONAL Broker effectively notice to Salesperson" held on December his/her/its law of with Corporate this Agreement, with or without At a meeting or fqils to conduct commits the Salesperson about his alleged Page 3 of 12 [* 4] INDEX NO. 162223/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 09/16/2020 inappropriate social interactions Plaintiff workplace. "Independent AgreementH declined Real Estate 10, 2018 request in the to sign an Termination and Release AgreementH) ("Termination CIRE terminated 2018, and this lawsuit The Amended CIRE's Salesperson dated December (NYSCEF Doc. No.9). with female employees plaintiff on December 18, ensued. Complaint alleges (i) causes of action under New York State Human Rights Law ~296 for sexual harassment discrimination (first cause of action), (second cause of action), action); and retaliation action), retaliation environment abetting harassment, under ~296(6) Law and ~8-107(6) Labor Law ~201-g and repudiation Agreement, of contract interference with prospective REGIS vs. CHRISTIE'S work for aiding and work environment, Code (seventh cause of Code ~8-107(Z9) and including claims (tenth cause of action), business INTERNATIONAL Motion No. 002 4 of 12 and (iv) claims (ninth cause of action), with contract ROUMILA, and hostile of the New York State Human Rights (eighth cause of action); interference 162223/2018 hostile of Administrative the Salesperson (fourth cause of (iii)' claims of the Administrative and violations regarding and discrimination (sixth cause of action); and retaliation ("Administrative (fifth cause of action), discrimination, action), of the Code of the City of New York for sexual harassment work environment (third cause of (ii) causes of action under ~8-107 Administrative CodeH) hostile and for breach tortious tortious opportunity/advantage Page 4 of 12 [* 5] INDEX NO. 162223/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 09/16/2020 (eleventh cause of action), damages (twelfth cause of action), cause of action), and fair dealing (fifteenth breach a permanent injunction (thirteenth of the implied covenant of good faith (fourteenth cause of action), cause of action), cause of action), under Labor Law S190 et seq. trespass and unfair conversion to chattels competition (sixteenth (seventeenth cause of action) . Defendants causes seek to dismiss the ninth through seventeenth of action. DISCUSSION "On a motion is to be afforded to dismiss a liberal NY2d 83, 87 [1998]). in the complaint every favorable as alleged pursuant to CPLR 3211, the pleading construction" (Leon v Martinez, "The Court must accept the facts alleged as true, accord the plaintiff inference, fit within and determine any cognizable 84 the benefit only whether legal theory" of the facts (id. at 87- 88) . Under CPLR 3211 (a) (1), dismissal documentary defense evidence to the asserted 232nd Owners [2002]). submitted 162223/2018 ROUMILA, Motion No. 002 establishes a (see 511 Realty Co., 98 NY2d 144, 152 w. under CPLR 3211(a) (7), however, affidavits in the complaint REGIS vs" CHRISTIE'S if the of law a motion the court may freely consider to remedy any defects conclusively claims as a matter Corp. v Jennifer In assessing is warranted INTERNATIONAL 5 of 12 submitted by plaintiff (see Rovello v Orofino Page 5 of 12 [* 6] INDEX NO. 162223/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 09/16/2020 Realty Co., 40 N~2d 633, 634 [1976]). the plaintiff one has a cause of action, (see Guggenheimer v Ginsburg, At oral argument (James, J.) ruled, more considered not whether the pleadings contract, by failing $25,312.50 terminated the individual defendants Agreement. to pay him commissions Agreement of contract, provided upon a material the in the amount Defendants was entitled to 40% of the Gross Commissions plaintiff was required to reimburse advanced to him. cannot be resolved To the extent Salesperson be dismissed. definitvely directed that plaintiff Agreement CIRE money Such defense on a motion communicated Complaint and for out of pocket implicates facts that at the pleadings. alleges by repudiation, The Amended was of its terms by plaintiff, plaintiff expenses of argue that the that when such Agreement breach as However, allege that CIRE breached for sale of a property. Salesperson and rescinds for breach to the Salesperson sufficiently and as follows. does not lie against they were not parties Upon further the court vacates As for the ninth cause of action such action it has stated 26, 2109, this Court in part, on the record. and decides is whether 43 NY2d 268, 275" [1977]). held on September deliberation, such oral ruling The criteria that CIRE breached the such cause of action must does not allege that it intended that CIRE not the pay the , commission plaintiff 162223/2018 ROUMILA, Motion No. 002 earned REGIS VS. CHRISTIE'S upon the sale of the property INTERNATIONAL 6 of 12 in Page 6 of 12 [* 7] INDEX NO. 162223/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 09/16/2020 question, Jacobs and therefore Private Equity, repudiation is insufficiently pled. LLC v 450 Park, LLC, 22 AD3d 347 See (1st Dept. 2015). The elements contract of a claim of tortious are the existence defendants of a valid contract, were aware and wrongfully court concurs with defendants the form of the Salesperson that the listings contracts belonged with plaintiff. for" the interference been consummated. Dept. 2006). Moreover, 215 establishes This evidence in irrefutably to CIRE and did not constitute Nor does plaintiff allege that "but such "contracts" v Combs, 25 AD3d v New York University, the tortious would have (1st 370, 373 The eleventh purported directed their contractual fail to any improper opportunity for tortious conduct engaged and apart from their alleged obligations." interference shall be dismissed did not allege that defendants separate claims 268, clients. cause of action business 110 AD3d interference that any of the defendants "plaintiff termination. Thus, the tenth cause of action must be dismissed. toward plaintiff's conduct Agreement of defendants, as in Kickertz prospective induced with of which that the documentary See Burrowes (1st Dept. 2012), allege interference with as well, as in tortious failure Susman v Commerzbank to fulfill Capital I Makts. Cor~, plaintiff's 95 AD3d 589, 590 (lst Dept. 2012). claim is his failure to allege 162223/2018 ROUMILA, Motion No. 002 REGIS vs. CHRISTIE'S INTERNATIONAL 7 of 12 Also fatal to that defendants acted Page 7 of 12 [* 8] INDEX NO. 162223/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 09/16/2020 with the sole motivation defendants to harm him, asserting acted with the intent of benefiting Thome v Calder Found., Plaintiff's 70 AD3d 88, 108 twelfth for unpaid as such statute does not apply to wages, which plaintiff bi-weekly representatives, Construction or monthly, at bar seeks. employees, must be paid. Management, The thirteenth for how often, including LLC, 175 AD3d 1144 covenant for a "permanent paragraph of his Amended cause of action defendants claim for breach stated against of contract CIRE either, AD3d cause of action. 98, 104 (lst With respect conversion, relief plaintiff Complaint. of implied stated against as there same. since the factual as alleged against is no No claim allegations are in the breach See Mill Fin., LLC v Gillett, is of 122 Dept. 2014). to the fifteenth the sixteenth 162223/2018 ROUMILA, Motion No. 002 injunction" does not survive for the same reasons the same and seek the same damages contract for breach of good faith and fair dealing the individual sales (1st Dept. 2019). does not state a claim but is a remedy, which The fourteenth Instead, See Vega v CM and Associates cause of action seeks in the decretal See (1st Dept. 2009). Labor Law S 191 sets forth the requirements weekly, themselves. cause of action under the New York Labor Law must be dismissed claims only that such REGIS vs. CHRISTIE'S cause of action cause of action INTERNATIONAL 8 of 12 for for trespass to Page 8 of 12 [* 9] INDEX NO. 162223/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 09/16/2020 chattels, and the seventeenth competition, the court decides ."Conversion v WCSC, Inc., 88 AD2d specifically action" rights" identifiable, an action where damages to another to the Woodward, "Money, of Inc. if may be the subj.ect of a conversion [internal citations for conversion are merely and exercise (Peters Griffin 883 [1st Dept 1982]). (id. at 883-884 "However, assumption over goods belonging of the owner's for unfair as follows . is an unauthorized the right of ownership exclusion cause of action omitted]). cannot be validly being sought for breach maintained of contract" (id. at 884). Here, plaintiff possessory client rights alleges that plaintiff and interests lists, other documents in defendants' possession, files, prospective and information, and that defendants turn them over to him, despite Section in client has immediate and commissions have declined to his demand. 3.07 of the Salesperson Agreement provides: "Salesperson"acknowledges that all files, listings, client information, correspondence, papers . materials, documents, records, computer data and content, and other materials and information of and/or maintained by Corporate Broker and any of its agents, independent contractors, employees, principals, and affiliated entities, furnished or otherwise available to Salesperson by Corporate Broker (collectively, the "Proprietary Information"), are the exclusive property of Corporate Broker and shall be kept strictly confidential by Salesperson. After termination or expiration of this Agreement, Salesperson shall 162223/2018 ./ Untinn Nn ROUMILA, nn, REGIS VS. CHRISTIE'S 9 of 12 INTERNATIONAL Page 9 of 12 [* 10] INDEX NO. 162223/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 09/16/2020 return the Proprietary Information, and copies of all records and documents relating to Salesperson's activities under this Agreement to Corporate Broker. Salesperson agrees not to use such Proprietary Information and records to Salesperson's advantage or to the advantage of any other person or entity at the time. Any and all listings of Salesperson are subject to Corporate Broker's approval and shall remain the property of Corporate Broker, as the broker of record, during and after the term of this Agreement" (Salesperson Agreement, supra). In addition, ~3.08 states: "Salesperson acknowledges that all information input by Salesperson or Corporate Broker's computers and/or computer server system shall be the Proprietary information of Corporate Broker upon such input. Salesperson hereby assigns to Corporate Broker, irrevocably and without any need for further consideration, all of Salesperson's right, title and interest in, and to, any copyright or other intellectual property rights in any property listing posted by Salesperson on or in the Corporate Broker's computer system, or provided to the Real Estate Board of New York Res{dehtial Listing Services (the "RLS") or other listing, advertising or communications medium (the "PI Assignment"). Such right, title and inte~est shall be deemed assigned as of the moment of creation without any further action on the part of either party. Salesperson agrees to execute and deliver to Corporate Broker, at any time during or after the term of this Agreement, any documents or instruments necessary to confirm the PI Assignment. Salesperson agrees to take any action necessary to enable Corporate Broker to secure, protect, enforce and defend its copyrights in such data and/or content and to protect its Proprietary Information" (id.) . The claim for conversion client of the client lists, and other documents files, prospective and information 162223/2018 ROUMILA, REGIS VS. CHRISTIE'S INTERNATIONAL Motion No. 002 10 of 12 must be Page 10 of 12 [* 11] INDEX NO. 162223/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 09/16/2020 dismissed pursuant Agreement. ~~3.07 The Court need not address and 3.08 are unconscionable plaintiff client to ~~3.07 and 3.08 of the Salesperson (Roumila Affid, conversion NYSCEF ninth cause of action (see Peters Griffin the fifteenth for breach Woodward, plaintiff Furthermore, Inc. v WCSC, justification was harmed of contract Inc., supra). for trespass or consent, of plaintiff's thereby 3 Misc 3d 278, 281 allegations possession, use, and enjoyment the Salesperson personal Agreement competition. of common to intentionally, physically interfered property, (see School of Visual [Sup Ct, NY County that defendants and that Arts v 2003]). interfered of his property, with with his and failed to and 3.08 of and the return of the items. The Court also dismisses 162223/2018 ROUMILA, Motion No. 002 Thus, to chattel, turn them over to him, must fail in light of ~~3.07 two theories for of the To state a claim for trespass Plaintiff's for unfair the claim as duplicative must allege that defendants, the use and enjoyment Kuprewicz, relationships and repudiation cause of action, shall also be dismissed. plaintiff since over prospective his pre-existing is dismissed that case of action must be dismissed. The sixteenth and without turned Doc. No. 49). of commissions assertion and unenforceable notes that CIRE's attorneys lists and data concerning chattel, plaintiff's the seventeenth cause of action, New York Courts have long recognized law unfair REGIS vs. CHRISTIE'S competition, INTERNATIONAL 11 of 12 palming off and Page 11 of 12 [* 12] INDEX NO. 162223/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 09/16/2020 misappropriation (see ITC Ltd v Punchgini, Palming [2007J). concerns plaintiff's to compete property of the same property" (id.). faith misappropriation exclusively "the taking and use of the against of commercial to him special relationship between from unfairly Sales & Serv., 2008 J) . damages, own use the bad or p~operty v Massachusetts [2d Dept 2006J). which Mut. Plaintiff must and there must be a confidential or a valid agreement to refrain (see Private One of New York, LLC v JMRL here, plaintiff's used and are using misappropriated Agreement, advantage Inc., 21 Misc 3d 1106[AJ Likewise, information must allege (see LoPresti the parties competing the plaintiff's Plaintiff Life Ins. Co., 30 AD3d 474, 476 also allege 467, 478 off is the sale of goods as those of another, and misappropriation belonged Inc., 9 NY3d *14 [Sup Ct,Kings allegations Count that defendants client/prospective client fail in light of ~~3.07 and 3.08 of the Salesperson and the return of the information. 9/16/2020 -------J!-D--~RA/JkMEl-:tkc. DATE CHECK ONE: CASE DISPOSED GRANTED 162223/2018 ROUMILA, Motion No. 002 X DENIED ~ INCLUDES TRANSFER/REASSIGN REGIS vs. CHRISTIE'S GRANTED SUBMIT SETTLE ORDER APPLICATION: CHECK IF APPROPRIATE: D NON.FINAL INTERNATIONAL 12 of 12 ~ DISPOSITION IN PART ORDER FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page 12 of 12

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