Litvinoff v. Wright

• Decision Date: 03 May 2017
• Citation: 150 A.D.3d 714,54 N.Y.S.3d 22
• Parties: Stanley LITVINOFF, respondent, v. Mindy WRIGHT, appellant.
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 714

54 N.Y.S.3d 22

Stanley LITVINOFF, respondent,

v.Mindy WRIGHT, appellant.

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

May 3, 2017.

Summers & Schneider, P.C., Brooklyn, NY (Douglas M. Schneider of counsel), for appellant.

MARK C. DILLON, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for conversion, money had and received, and breach of fiduciary duty, the defendant appeals from an order of the Supreme Court, Kings County (Solomon, J.), entered December 12, 2014, which denied her motion pursuant to CPLR 3211(a)(5) and (a)(7) to dismiss the complaint.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the defendant's motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging conversion and breach of fiduciary duty, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff surrendered an annuity in his name and transferred the proceeds to a bank account owned by his sister, the defendant, upon her agreement to safeguard the funds pending the plaintiff's determination of how he wished to dispose of them. Thereafter, the plaintiff commenced this action seeking the return of the funds from the defendant. He asserted causes of action sounding in conversion, money had and received, and breach of fiduciary duty. The defendant moved pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint based on the statute of frauds and for failure to state a cause of action. The Supreme Court denied the motion, and the defendant appeals.

That branch of the motion which was to dismiss the cause of action to recover damages for conversion must be granted, as the plaintiff did not oppose that branch of the motion (see Gaetano Dev. Corp. v. Lee, 121 A.D.3d 838, 840, 994 N.Y.S.2d 641 ; Paolicelli v. Fieldbridge Assoc., LLC, 120 A.D.3d 643, 647, 992 N.Y.S.2d 60 ; Aronov v. Shimonov, 105 A.D.3d 787, 788, 963 N.Y.S.2d 306 ; Matter of Agoglia v. Benepe, 84 A.D.3d 1072, 1075, 924 N.Y.S.2d 428 ; Sanchez v. Village of Ossining, 271 A.D.2d 674, 675, 707 N.Y.S.2d 866 ).

In addition, the Supreme Court should have granted that branch of the motion which was to dismiss the cause of action sounding in breach of fiduciary duty for failure to state a cause of action. " The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant's misconduct" (Rut v. Young Adult Inst., Inc., 74 A.D.3d 776, 777, 901 N.Y.S.2d 715 ; see Deblinger v. Sani–Pine Prods. Co., Inc., 107 A.D.3d 659, 660, 967 N.Y.S.2d 394 ). "A cause of action sounding in breach of fiduciary duty must be pleaded with particularity under CPLR 3016(b)" (Swartz v. Swartz, 145 A.D.3d 818, 823, 44 N.Y.S.3d 452 ; see Deblinger v. Sani–Pine Prods. Co., Inc., 107 A.D.3d at 660, 967 N.Y.S.2d 394 ). Here, affording the complaint a liberal construction, accepting the facts alleged therein to be true, and granting the plaintiff the benefit of every possible favorable inference, the complaint failed to adequately plead the existence of a fiduciary relationship between the plaintiff and the defendant (see Castellotti v. Free, 138 A.D.3d 198, 209–210, 27 N.Y.S.3d 507 ; Chasanoff v. Perlberg, 19 A.D.3d 635, 635–636, 798 N.Y.S.2d 116 ; see generally Restatement [Second] of Torts § 874 [a]; cf. Birnbaum v. Birnbaum, 73 N.Y.2d 461, 465, 541 N.Y.S.2d 746, 539 N.E.2d 574 ; Venizelos v. Oceania Mar. Agency, 268 A.D.2d 291, 702 N.Y.S.2d 17 ).

However, the Supreme Court properly denied that branch of the defendant's motion pursuant to CPLR 3211(a)(5) and (7) which was to dismiss the cause of action to recover damages for money had and received. The defendant contends, inter alia, that this cause of action is barred by the statute of frauds because it is premised on the oral agreement between the parties that the defendant would keep the surrendered annuity funds safe while the plaintiff decided how to dispose of them. However, regardless of the viability of a breach of contract cause of action (which is not asserted by the plaintiff), where, as here, a quasi contract theory is used to seek recovery of the amount by which a defendant was enriched at a plaintiff's expense, rather than as an attempt to enforce an oral contract, it is not precluded by the statute of frauds (see Farash v. Sykes Datatronics, 59 N.Y.2d 500, 503, 465 N.Y.S.2d 917, 452 N.E.2d 1245 ; Castellotti v. Free, 138 A.D.3d at 208, 27 N.Y.S.3d 507 ; Kearns v. Mino, 83 A.D.2d 606, 606, 441 N.Y.S.2d 297 ).

"On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the complaint a liberal construction, 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. The plaintiff's ultimate ability to prove those allegations is not relevant

" (Nouveau El. Indus., Inc. v. Glendale Condominium Town & Tower Corp., 107 A.D.3d 965, 966, 969 N.Y.S.2d 77 [citations and internal quotation marks omitted] ). "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove...