Canzona v. Atanasio

• Decision Date: 18 June 2014
• Citation: 118 A.D.3d 837,989 N.Y.S.2d 44,2014 N.Y. Slip Op. 04458
• Parties: Christopher CANZONA, appellant, v. Charles ATANASIO, et al., respondents.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 837
989 N.Y.S.2d 44
2014 N.Y. Slip Op. 04458

Christopher CANZONA, appellant,
v.
Charles ATANASIO, et al., respondents.

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

June 18, 2014.

[989 N.Y.S.2d 45]

Michael B. Schulman & Associates, P.C., Melville, N.Y. (David R. Weiner and Miro Lati of counsel), for appellant.

[989 N.Y.S.2d 46]

Morvillo Abramowitz Grand Iason & Anello P.C., New York, N.Y. (Robert J. Anello and Andrew C. Brunsden of counsel), for respondents.

RANDALL T. ENG, P.J., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of (1) an order of the Supreme Court, Suffolk County (Whelan, J.), dated December 20, 2011, as granted those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the second, third, fourth, and fifth causes of action in the amended complaint, (2) a judgment of the same court entered January 17, 2012, as, upon the order, is in favor of the defendants and against him dismissing those causes of action with prejudice, and (3) an order of the same court dated November 7, 2012, as denied that branch of his motion which was pursuant to CPLR 5019(a) to correct the judgment by deleting from the decretal paragraph thereof the words “with prejudice.”

ORDERED that the appeal from the order dated December 20, 2011, is dismissed, without costs or disbursements; and it is further,

ORDERED that the judgment is modified, on the law, by deleting the provisions thereof dismissing the fifth cause of action and, upon dismissing the second, third, and fourth causes of action, did so “with prejudice”; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the fifth cause of action is denied, the fifth cause of action is reinstated and, with the first cause of action, is severed, and the order is modified accordingly; and it is further,

ORDERED that the appeal from the order dated November 7, 2012, is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the judgment.

The appeal from the order dated December 20, 2011, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( seeCPLR 5501[a][1] ).

The plaintiff was married to the sister of the defendant Charles Atanasio (hereinafter Atanasio) and was an employee of a company co-owned by Atanasio. In 2000, the plaintiff and Atanasio jointly purchased a 48–foot boat, each retaining a 50% interest. In 2001, the plaintiff, Atanasio, and their wives purchased a residential property as tenants in common. The plaintiff commenced this action against Atanasio and his wife, Mary Atanasio, to recover monies they allegedly owed him for his payment of expenditures in connection with the property and boat from January 2001 to August 2008. In the amended complaint, the plaintiff asserted causes of action, inter alia, alleging breach of contract, conversion, and constructive fraud, and to impose a constructive trust upon the property. The defendants moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the amended complaint for failure to state a cause of action, and the Supreme Court granted the motion. Thereafter, the Supreme Court entered a judgment upon the order dismissing the amended complaint with prejudice.

“On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court

[989 N.Y.S.2d 47]

must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” ( Breytman v. Olinville Realty, LLC, 54 A.D.3d 703, 703–704, 864 N.Y.S.2d 70;see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Moreover, “[a] court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint, and upon considering such an affidavit, the facts alleged therein must also be assumed to be true” ( Kopelowitz & Co., Inc. v. Mann, 83 A.D.3d 793, 797, 921 N.Y.S.2d 108 [citations and internal quotation marks omitted] ).

Applying these principles here, the Supreme Court properly dismissed the second cause of action, which alleged conversion of funds, since the plaintiff asserted a mere right to payment and did not allege that the defendants had unauthorized possession or control of specifically identifiable funds allegedly converted ( see Daub v. Future Tech Enter., Inc., 65 A.D.3d 1004, 1006, 885 N.Y.S.2d 115;Selinger Enters., Inc. v. Cassuto, 50 A.D.3d 766, 768, 860 N.Y.S.2d 533;Fiorenti v. Central Emergency Physicians, 305 A.D.2d 453, 455, 762 N.Y.S.2d 402).

The Supreme Court also properly dismissed the third cause of action, which alleged breach of contract. The essential elements of a breach of contract cause of action are “the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach” ( Dee v. Rakower, 112 A.D.3d 204, 208–209, 976 N.Y.S.2d 470;see Elisa Dreier...