Grant v. Difeo

• Court: New York Supreme Court — Appellate Division
• Citation: Grant v. Difeo, 165 A.D.3d 897, 86 N.Y.S.3d 575 (N.Y. App. Div. 2018)
• Decision Date: 17 October 2018
• Docket Number: 2015–10805,Index No. 604841/14
• Parties: Jonathan GRANT, etc., et al., respondents, v. Agostino A. DIFEO, et al., appellants, et al., defendant.

165 A.D.3d 897

86 N.Y.S.3d 575

Jonathan GRANT, etc., et al., respondents,

v.Agostino A. DIFEO, et al., appellants, et al., defendant.

2015–10805

Index No. 604841/14

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

Argued - March 1, 2018

October 17, 2018

Archer & Greinfer, P.C., New York, N.Y. (Patrick Papalia and LisaAnne R. Biocchi, Hackensack, NJ, of counsel), for appellant Agostino A. DiFeo.

Speyer & Perlberg, LLP, Melville, N.Y. (Dennis M. Perlberg and Thomas E. Scott of counsel), for appellant Luciano Caferra.

Abrams, Fensterman, Fensterman, Eisman, Formato & Wolf, LLP, Lake Success, N.Y. (Howard Fensterman and John S. Cahalan of counsel), for respondents.

MARK C. DILLON, J.P., HECTOR D. LASALLE, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the defendants Agostino A. DiFeo and Luciano Caferra separately appeal from an order of the Supreme Court, Nassau County (Jerome C. Murphy, J.), entered October 7, 2015. The order, insofar as appealed from by the defendant Agostino A. DiFeo, granted that branch of the plaintiffs' motion which was for leave to reargue their opposition to that branch of his motion, made jointly with the defendant Chrysler Jeep of White Plains, Inc., which was to dismiss the first and seventh causes of action in the amended complaint insofar as asserted against him, and thereupon, vacated the determination in an order of the same court entered June 3, 2015, granting that branch of the prior motion, and denied that branch of the prior motion. The order, insofar as appealed from by the defendant Luciano Caferra, upon reargument, vacated the determination in the order entered June 3, 2015, granting that branch of his prior motion which was to dismiss the first cause of action in the amended complaint insofar as asserted against him, and thereupon, denied that branch of his prior motion.

ORDERED that the order entered October 7, 2015, is affirmed insofar as appealed from, with one bill of costs.

Jonathan Grant, Agostino A. DiFeo, and Luciano Caferra were business partners. In 2013, they entered into an agreement wherein Grant would sell part of his interest in Chrysler Jeep of White Plains, Inc. (hereinafter Chrysler Jeep), to DiFeo and Caferra in exchange for their interests in Hyundai of White Plains, LLC. Subsequently, Grant and Hyundai of White Plains, LLC, commenced this action against DiFeo, Caferra, and Chrysler Jeep, alleging various causes of action. DiFeo and Chrysler Jeep moved, inter alia, pursuant to CPLR 3211(a) to dismiss the first cause of action, which sought rescission based on fraud, and the seventh cause of action, which alleged breach of fiduciary duty, insofar as asserted against DiFeo. Caferra separately moved, inter alia, pursuant to CPLR 3211(a) to dismiss the first cause of action insofar as asserted against him. In an order entered June 3, 2015, the Supreme Court, inter alia, granted those branches of the motions which sought dismissal of the first and seventh causes of action insofar as asserted against DiFeo and Caferra.

Thereafter, the plaintiffs moved, inter alia, for leave to reargue their opposition to the defendants' motions to dismiss. In an order entered October 7, 2015, the Supreme Court granted reargument, and thereupon, vacated the determination in the order entered June 3, 2015, granting the subject branches of DiFeo's and Caferra's motions, and denied that branch of DiFeo's motion which was to dismiss the first and seventh causes of action insofar as asserted against him and that branch of Caferra's motion which was to dismiss the first cause of action insofar as asserted against him. DiFeo and Caferra separately appeal from the order made upon reargument.

Subsequent to the filing of the notices of appeal, the plaintiffs were granted leave to serve a second amended complaint. The second amended complaint adds new causes of action; however, it does not substantively alter the existing causes of action in...