Mawere v. Landau

• Decision Date: 29 July 2015
• Docket Number: 2013-09198
• Citation: 130 A.D.3d 986,2015 N.Y. Slip Op. 06317,15 N.Y.S.3d 120
• Parties: Jonathan MAWERE, etc., appellant, v. Joel LANDAU, et al., respondents.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 986
15 N.Y.S.3d 120
2015 N.Y. Slip Op. 06317

Jonathan MAWERE, etc., appellant
v.
Joel LANDAU, et al., respondents.

2013-09198

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

July 29, 2015.

15 N.Y.S.3d 121

Annette G. Hasapidis, South Salem, N.Y., for appellant.

Garfunkel Wild, P.C., Great Neck, N.Y. (Roy W. Breitenbach and Justin M. Vogel of counsel), respondent pro se and for respondents Joel Landau, Jack Basch, Leibel Rubin, Marvin Rubin, Solomon Rubin, Alliance Health Associates, Inc., Alliance Health Property, LLC, and Judith Eisen.

PETER B. SKELOS, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

Opinion

130 A.D.3d 986

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated May 15, 2013, as granted those branches of the motion of the defendants Joel Landau, Jack Basch, Leibel Rubin, Marvin Rubin, Solomon Rubin, Alliance Health Associates, Inc., and Alliance Health Property, LLC, which were pursuant to CPLR 3211(a) to dismiss the first, fifth, seventh, eighth, tenth, sixteenth, and seventeenth causes of action, the third and twelfth causes of action insofar as asserted against each of them, and the ninth cause of action insofar as asserted against the defendants Leibel Rubin, Marvin Rubin, and Solomon Rubin, and those branches of the separate motion of the defendants Judith Eisen and Garfunkel Wild, P.C., which were pursuant to CPLR 3211(a) to dismiss the eleventh and fourteenth causes of action and the third and twelfth causes of action insofar as asserted against each of them, and, in effect, denied his application for leave to replead.

15 N.Y.S.3d 122

130 A.D.3d 987

ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, in effect, denied the plaintiff's application for leave to replead is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the order is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof, in effect, denying the plaintiff's application for leave to replead the seventh, eighth, and sixteenth causes of action, and substituting therefor a provision granting that application, and (2) by deleting the provision thereof granting those branches of the motion of the defendants Judith Eisen and Garfunkel Wild, P.C., which were pursuant to CPLR 3211(a) to dismiss the eleventh and fourteenth causes of action, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The instant action involves the purchase of Ruby Weston Manor and Marcus Garvey Residential Rehab Pavilion, Inc., which were both financially troubled nursing home facilities located in Brooklyn. The plaintiff, Jonathan Mawere, alleges that the defendants Joel Landau and Jack Basch agreed to jointly purchase and operate the facilities together with him, via operating companies, the nominal defendants Alliance Health Associates, Inc., and Alliance Health Property, LLC, but that Landau and Basch, along with the defendants Leibel Rubin, Marvin Rubin, and Solomon Rubin (hereinafter collectively the purchasing defendants) ultimately excluded him from the transaction. He further alleges that the defendants Garfunkel Wild, P.C., and Judith Eisen, a partner in that firm (hereinafter together the law firm defendants), breached fiduciary obligations they owed to him by helping the purchasing defendants complete the transaction. The purchasing and nominal defendants moved, and the law firm defendants separately moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them. The Supreme Court granted those branches of the motions, and the plaintiff appeals.

“A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law” (Vertical Progression, Inc. v. Canyon Johnson Urban Funds, 126 A.D.3d 784, 786, 5 N.Y.S.3d 470 [internal quotation marks omitted]; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ).

130 A.D.3d 988

In considering a motion to dismiss a complaint pursuant to CPLR 3211 (a)(7), “the court must 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” (Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153 [internal quotation marks omitted]; see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d...