Glynos v. Dorizas, Index No. 113984/2011

CourtUnited States State Supreme Court (New York)
Writing for the CourtLUCY BILLINGS, J.S.C.
PartiesDAVID GLYNOS, Plaintiff v. ANDREAS DORIZAS, Defendant
Docket NumberIndex No. 113984/2011
Decision Date06 March 2015

2015 NY Slip Op 32874(U)

DAVID GLYNOS, Plaintiff
v.
ANDREAS DORIZAS, Defendant

Index No. 113984/2011

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46

FILED: March 24, 2015
March 6, 2015


DECISION AND ORDER

LUCY BILLINGS, J.S.C.:

Defendant moves to amend his answer to add a tenth and an eleventh affirmative defense to plaintiff's remaining claim that defendant breached the parties' written contract dated April 13, 2005, providing that, upon defendant's sale of specified real property for at least $3,000,000, defendant was to pay plaintiff a $150,000 bonus for his past management services. Glynos v. Dorizas, 106 A.D.3d 480, 480 (1st Dep't 2013). C.P.L.R. § 3025(b) permits amendments to an answer adding affirmative defenses as long as the proposed affirmative defenses, as alleged, are meritorious. Mezzacappa Bros., Inc. v. City of New York, 29 A.D.3d 494, 494 (1st Dep't 2006); Tishman Constr. Corp. of N.Y. v. City of New York, 280 A.D.2d 374, 377 (1st Dep't 2001); Lanpont v. Savvas Cab Corp., 244 A.D.2d 208, 209-10 (1st Dep't 1997); Norwood v. City of New York, 203 A.D.2d 147, 148 (1st Dep't 1994). See Sterling Natl. Bank v. American Elite Props. Inc., 91 A.D.3d 581, 581 (1st Dep't 2012). Defendant bears the burden to demonstrate the merits of the proposed

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defenses through admissible evidence. See Anoun v. City of New York, 85 A.D.3d 694, 695 (1st Dept 2011); Guzman v. Mike's Pipe Yard, 35 A.D.3d 266, 266 (1st Dep't 2006); Lanpont v. Savvas Cab Corp., 244 A.D.2d at 210. While defendant need not establish at this stage that the proposed defenses will succeed, he still must show their viability, by alleging their elements in a proposed verified amended answer or supporting them with other admissible evidence. Anoun v. City of New York, 85 A.D.3d at 695; CDR Créances S.A.S. v. Cohen, 77 A.D.3d 489, 490 (1st Dep't 2010); Guzman v. Mike's Pipe Yard, 35 A.D.3d at 266.

I. DEFENDANT'S PROPOSED TENTH AFFIRMATIVE DEFENSE

Defendant claims that any past management services by plaintiff were not for defendant's benefit, but were for the benefit of Mediterranean Properties, LLC, the manager of the real property. Defendant's proposed tenth affirmative defense claims that defendant is not personally liable for plaintiff's services for the benefit of the LLC or the real property the LLC managed. To support this proposed affirmative defense, defendant points out that, although he was a 50% owner of Mediterranean Properties, he would not be liable for any breach of contract, quantum meruit, or unjust enrichment claim against the limited liability company (LLC). N.Y. Lim. Liab. Co. Law § 609(e).

Plaintiff, however, does not make any claim against the LLC, allege any contract with the LLC, or make any quantum meruit or unjust enrichment claim even against defendant. Nor does defendant show any contract between plaintiff and the LLC. The

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contract that forms the basis for this action is between plaintiff and...

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