Asamblea De Iglesias Christianas, Inc. v. Devito
| Citation | 2020 NY Slip Op 30667 (U) |
| Decision Date | 10 February 2020 |
| Docket Number | Index No.: 522506/2018 |
| Parties | ASAMBLEA DE IGLESIAS CHRISTIANAS, INC. (ASSEMBLY OF CHRISTIAN CHURCHES, INC.) And JUAN CASTILLLO, Plaintiffs, v. JASON DEVITO, 249 58TH STREET CORP., JIN HU JIN HU & ASSOCIATES PLLC, 249 58 LLC, LESLIE SULTAN PC, KONG CHEN, LORENZO LUGARA AND LUGARA PLLC, Defendants. |
| Court | United States State Supreme Court (New York) |
At an IAS Term, Part 66 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 10th day of FEBRUARY 2020.
PRESENT: HON. RICHARD VELASQUEZ Justice.
Decision and Order
The following papers numbered 39 to 107 read on this motion:
Papers Numbered Notice of Motion/Order to Show Cause Affidavits (Affirmations) Annexed 39-41; 43-47; 48-53; 54-68 Opposing Affidavits (Affirmations)
70-71; 80-81; 90-91 Reply Affidavits (Affirmations)
102; 104; 107 Memorandum of Law 57; 69; 79; 89; 99; 100; 106
After oral argument and a review of the submissions herein, the Court finds as follows:
Defendants, LORENZO LUGARA AND LUGARA PLLC (hereinafter LUGARA), move pursuant to CPLR 3211(a)(7), dismissing complaint in its entirety. Plaintiff opposes the same. (MS #3)
Defendants, LESLIE SULTAN PC and KONG CHEN move pursuant to 3211(a)(7) and CPLR 3016(b) dismissing plaintiff's complaint. Plaintiff opposes the same. (MS #4)
Defendants, 249 58 LLC, move pursuant to 3016(b) and 3211(a)(1)(3)&(7) dismissing the complaint. Plaintiff opposes the same. (MS #5)
Defendants, JIN HU and JIN HU & ASSOCIATES PLLC, (hereinafter HU defendants) move pursuant to 2016(b) and 3211(a)(7) dismissing plaintiffs' complaint. Plaintiff opposes the same. (MS #6)
BACKGROUND
This action arises from the sale of real property located at 249-261 58th Street Brooklyn, New York. Plaintiff seeks to void the sale and specific performance to compel the sellers to convey the property to plaintiff based upon a Contract of Sale. The complaint also seeks damages for tortious interference with contract and fraud.
It is alleged, on October 19, 2016 defendants JASON DEVITO and 249 58th STREET CORP (sellers) entered into a written contract of Sale with plaintiffs, whereby 249 58th STREET CORP agreed to sell to the plaintiffs the real property known as 249-261 58th Street Brooklyn New York for the sum of $4,600,000.00 (hereinafter contract 1). It is undisputed Plaintiff paid $135,000.00 down payment for the property pursuant to the contract of sale. It is undisputed that said down payment was accepted and has never been returned. It is undisputed on February 16, 2017 the contract was amended by riderto replace CASTILLLO with ASAMBLEA DE IGLESIAS CRISTIANAS, INC. as the purchaser and to make CASTILLO a guarantor for any financing that plaintiffs obtained from Seller. For contract 1 seller was represented by defendants LUGARA. It is alleged that on November 4, 2018 plaintiffs discovered that seller was in contract with another entity known as 249 58 LLC for the sale of the property in question 249-261 58 Street, Brooklyn, New York (hereinafter this contract will be referred to as contract 2). For contract 2 seller was represented by defendant JIN HU. In addition, for contract 2 buyer 249 58 LLC was represented by the SULTAN defendants and it is undisputed that defendant CHEN was an agent of SULTAN defendants. It is also alleged that shortly after discovering the existence of contract 2 the SULTAN defendants were notified that plaintiff had an earlier contract and plaintiff filed a Summons with Notice along with a Notice of Pendency on defendants DEVITO and 249 58 STREET CORP.
Sometime thereafter the plaintiff alleges LUGARA communicated with plaintiff's lawyer that LUGARA was representing DEVITO and 249 58th STREET CORP and that defendant HU no longer represented DEVITO and 249 58th STREET CORP. It is alleged that in January of 2019 defendant LUGARA informed counsel for the plaintiffs that a closing was scheduled for February 18, 2019 to close on the premises in question with the plaintiff as the buyer. Plaintiff further alleges on January 8, 2019 they discovered that 249 58th STREET CORP sold the subject premises to 249 58 LLC rather than plaintiff and that the transfer purportedly occurred on December 27, 2018. This action follows.
ANALYSIS
Pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Morone v. Morone, 50 NY2d 481, 484, 429 NYS2d 592, 413 NE2d 1154; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634, 389 NYS2d 314, 357 NE2d 970). "The criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v. Ginzburg, 43 NY2d 268, 275, 401 NYS2d 182, 372 NE2d 17; Rovello v. Orofino Realty Co., 40 NY2d at 636, 389 NYS2d 314, 357 NE2d 970). "[B]are legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on such a motion" (Palazzolo v. Herrick, Feinstein, LLP, 298 AD2d 372, 751 NYS2d 401). "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims ... plays no part in the determination of a pre-discovery 3211[a][7] motion to dismiss" (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38; see EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 832 NE2d 26, 799 NYS2d 170 (Ct of Appeal 2005; Guggenheimer v. Ginzburg, 43 NY2d 268, 275, 372 NE2d 17 (1977).
When a party, usually the defendant, moves for a motion to dismiss, it is asking the court to make that determination instead. Poolt v. Brooks, 38 Misc. 3d 1216(A), 967 NYS2d 869 (Sup Ct 2013).
First, the court shall address the plaintiff's cause of action claims sounding in tortious interference with contracts. Defendants LUGARA contend plaintiff fails to sufficiently allege LUGARA induced a 3rd party to breach plaintiff's alleged contract and that the plaintiff fails to allege that but for LUGARA's conduct the contract would have been completed. Defendants, SULTAN contend the plaintiffs fail to state any actions they made that satisfies the elements for tortious interference with contract. Defendants 249 58 LLC join in SULTAN defendants' contentions. In opposition plaintiff contends all four elements are met for tortious interference with contract.
As previously stated, the determination to be made on a motion to dismiss is not whether there is a claim but whether the plaintiff has stated one. The elements of tortious interference with contractual relations are "(1) the existence of a contract between plaintiff and a third party; (2) defendant's knowledge of the contract; (3) defendant's intentional inducement of the third party to breach or otherwise render performance impossible; and (4) damages to plaintiff" (Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94, 595 N.Y.S.2d 931, 612 N.E.2d 289; see, Guard-Life Corp. v. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 189-190, 428 N.Y.S.2d 628, 406 N.E.2d 445); quoting M.J. & K. Co. v. Matthew Bender & Co., 220 A.D.2d 488, 490, 631 N.Y.S.2d 938, 940 (1995).
In the present case, the first element is satisfied as it is undisputed there was a contract for sale between the plaintiff and the defendants JASON DEVITO & 249 58th STREET CORP. The second element is satisfied because ALL of the named defendantsin the present case were aware of and parties to, or counsel representing the parties to the contract for sale of real property. The third element is satisfied as the plaintiff has alleged the defendants LUGARA, and the SULTAN defendants, and the HU defendants were all aware of the contract between the plaintiff and defendants JASON DEVITO & 249 58th STREET CORP for the sale of the real property and that the defendants LUGARA also represented the defendant JASON DEVITO & 249 58th Street Corp in selling the property to a different buyer defendant 249 58 LLC during the time that they were aware of the previous contract of sale. Additionally, it is alleged defendants LUGARA made representations to the plaintiff that the property was not going to be sold to the defendants 249 58 LLC but would be sold to plaintiffs. Finally, the fourth element is satisfied because damages clearly exist in the form of real property, and in addition plaintiffs gave to defendants a deposit of $135,000.00 on the contract of sale which has never been returned to the plaintiffs. In the present case, affording the plaintiff all favorable inferences, the plaintiff has alleged sufficient facts to satisfy each of the above elements for a cause of action for tortious interference with contractual relations..." (see Kelly v Bank of Buffalo, 32 AD2d 875); quoting Guggenheimer v. Ginzburg, 43 NY2d 268, 275, 372 NE2d 17 (1977).
Next the court shall address the plaintiff's cause of action sounding in fraud. "The elements of a cause of action to recover damages for fraud are (1) a misrepresentation or a material omission of fact which was false, (2) knowledge of its falsity, (3) an intent to induce reliance, (4) justifiable reliance by the plaintiff, and (5) damages" (Fox Paine & Co., LLC v. Houston Cas. Co., 153 AD3d 673, 677, 60 NYS3d 294; see EurycleiaPartners, LP v. Seward & Kissel, LLP, 12 NY3d 553, 559, 883 NYS2d 147, 910 NE2d 976; Introna v. Huntington Learning Ctrs., Inc., 78 AD3d 896, 898, 911 NYS2d 442). In addition to alleging all of the elements of a fraud cause of...
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