Can Man Carting, LLC v. Spiezio

• Decision Date: 24 October 2018
• Docket Number: 2016–02967,Index No. 61783/14
• Citation: 86 N.Y.S.3d 182,165 A.D.3d 1029
• Parties: CAN MAN CARTING, LLC, respondents, v. Joseph SPIEZIO, et al., appellants.
• Court: New York Supreme Court — Appellate Division

165 A.D.3d 1029

86 N.Y.S.3d 182

CAN MAN CARTING, LLC, respondents,

v.Joseph SPIEZIO, et al., appellants.

2016–02967

Index No. 61783/14

Supreme Court, Appellate Division, Second Department, New York.

Argued - May 14, 2018

October 24, 2018

Spolzino, Smith, Buss & Jacobs, LLP, Yonkers, N.Y. (Robert A. Spolzino, Jeffrey D. Buss, Michael Mauro, and Ryan Kaupelis of counsel), for appellants.

Judd Burstein, P.C., New York, NY, for respondents.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Westchester County (Mary H. Smith, J.), dated March 18, 2016. The order, insofar as appealed from, denied those branches of the defendants' motion which were for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the defendants' motion which were for summary judgment dismissing the second and fourth causes of action, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiffs commenced this action against the defendants alleging, among other things, causes of action to recover damages for breach of contract and unjust enrichment, and to set aside an allegedly fraudulent conveyance pursuant to Debtor and Creditor Law § 273. The plaintiff Andris Kurins is an owner of the plaintiff Can Man Carting, LLC (hereinafter CMC), and the defendant Joseph Spiezio is the sole owner of the defendants Can Man Sanitation, Inc. (hereinafter CMS), and JLS Waste Services of Nevada Corp. (hereinafter JLS).

The plaintiffs alleged that Spiezo, on behalf of JLS, entered into an oral agreement with Kurins and other owners, on behalf of CMC, in early February 2013, whereby CMC would transfer all of its tangible and intangible assets to JLS for $2,350,000, with certain portions of that amount applied toward the satisfaction of CMC's outstanding debts and certain other portions to be paid in installments to CMC and Kurins individually. According to the plaintiffs, Spiezio made no payments to CMC and only made 12 installment payments to Kurins. Further, according to the plaintiffs, Spiezo thereafter transferred, without consideration, the assets that JLS had acquired from CMC to CMS.

The defendants moved, inter alia, for summary judgment dismissing the complaint. In the order appealed from, the Supreme Court denied those branches of the motion which were for summary judgment dismissing the complaint. The defendants appeal.

" ‘[W]hile the ultimate burden of proof at trial will fall upon the plaintiff[s], a defendant seeking summary judgment bears the initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form’ " ( Katz v. Beil, 142 A.D.3d 957, 964, 39 N.Y.S.3d 157, quoting Collado v. Jiacono, 126 A.D.3d 927, 928, 6 N.Y.S.3d 116 ; see Vanderhurst v. Nobile, 130 A.D.3d 716, 717, 13 N.Y.S.3d 231 ). The creation of an enforceable contract requires "a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms," but "not all terms of a contract need be fixed with absolute certainty" ( Matter of Express Indus. & Term. Corp. v. New York State Dept. of Transp., 93 N.Y.2d 584, 589–590, 693 N.Y.S.2d 857, 715 N.E.2d 1050 ). Here, the defendants' submissions, which included deposition testimony, email correspondence, and other evidence, could support the conclusion that an oral agreement was reached between the owners of JLS and JLS to make certain payments to both CMC and Kurins individually. The defendants therefore failed to meet their prima facie burden of establishing the absence of an enforceable oral agreement (see Clifford v. Remco Maintenance, LLC, 95 A.D.3d 923, 923–924, 944 N.Y.S.2d 249 ; Moon v. Moon, 6 A.D.3d 796, 798, 776 N.Y.S.2d 324 ). In light of this dispute over the terms of the alleged oral agreement, as evidenced by the defendants' own submissions, it cannot be said as a matter of law that the statute of frauds applies (see Wassner v. Bais Yaakov of Brooklyn, 300 A.D.2d 579, 579, 751 N.Y.S.2d 876 ), or that there were no possible means of performance within one year (see General Obligations Law § 5–701[a][1] ; Moon v. Moon, 6 A.D.3d at 798, 776 N.Y.S.2d 324 ).

The defendants also failed to submit evidence sufficient to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action to set aside JLS's alleged conveyance to CMS pursuant to Debtor and Creditor Law § 273. The defendants failed to eliminate all triable issues of fact as to whether the alleged conveyance to CMS of the assets and goodwill that JLS purchased from CMC was made without fair consideration (see Madison Hudson Assoc. v. Neumann, 4 A.D.3d 257, 257, 771 N.Y.S.2d 653 ; Serota v. Power House Realty Corp., 274 A.D.2d 427, 427, 711 N.Y.S.2d 778 ).

The defendants also...