Opinion
2015-04472 Index No. 1181/13.
02-24-2016
NILAZRA, INC., plaintiff, v. KARAKUS, INC., et al., defendants, Nellie Levitis, also known as Nelly Levitis, defendant third-party plaintiff-respondent, Erik Ikhilov, defendant third-party defendant-appellant.
Alan Bennett, Brooklyn, N.Y. (Andrei A. Popescu of counsel), for defendant third-party defendant-appellant. Lewis Brisbois Bisgaard & Smith LLP, New York, N.Y. (Mark K. Anesh and Rebecca A. Barrett of counsel), for defendant third-party plaintiff-respondent.
Alan Bennett, Brooklyn, N.Y. (Andrei A. Popescu of counsel), for defendant third-party defendant-appellant.
Lewis Brisbois Bisgaard & Smith LLP, New York, N.Y. (Mark K. Anesh and Rebecca A. Barrett of counsel), for defendant third-party plaintiff-respondent.
Opinion
In an action, inter alia, to recover damages for fraud, breach of contract, promissory estoppel, and legal malpractice, the defendant third-party defendant appeals from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated March 31, 2015, as denied his motion pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint must be construed liberally, the factual allegations must be deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences (see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; Carillo v. Stony Brook Univ., 119 A.D.3d 508, 508–509, 987 N.Y.S.2d 868). “In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims” (Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366, 670 N.Y.S.2d 973, 694 N.E.2d 56 [internal quotation marks omitted]; see Mills v. Gardner, 106 A.D.3d 885, 886, 965 N.Y.S.2d 580). While a court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) (see Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153), it must be kept in mind that a motion pursuant to CPLR 3211(a)(7) is not a motion for summary judgment unless the court elects to so treat it under CPLR 3211(c), after giving adequate notice to the parties (see Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635, 389 N.Y.S.2d 314, 357 N.E.2d 970; Shofel v. DaGrossa, 133 A.D.3d 649, 19 N.Y.S.3d 427). “Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Rabos v. R & R Bagels & Bakery, Inc., 100 A.D.3d 849, 851–852, 955 N.Y.S.2d 109; see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 274–275, 401 N.Y.S.2d 182, 372 N.E.2d 17).
The plaintiff commenced the instant action to recover damages arising from a sales tax lien that accrued after it purchased a restaurant from the defendant Karakus, Inc. (hereinafter the seller). The defendant third-party plaintiff, Nellie Levitis, also known as Nelly Levitis (hereinafter Levitis), represented the plaintiff as the purchaser, and the defendant third-party defendant, Erik Ikhilov, represented the seller. Tax Law § 1141(c) requires that at least 10 days prior to the transfer of a business, the purchaser must file a notification of sale, transfer, or assignment in bulk (hereinafter the notification) with the New York State Department of Taxation and Finance (hereinafter the Department). The failure to timely file the notification results in the seller's sales tax liabilities attaching to the purchaser (see Tax Law § 1141[c]; Randazzo v. Nelson, 128 A.D.3d 935, 9 N.Y.S.3d 394; Yiouti Rest. v. Sotiriou, 151 A.D.2d 744, 745, 542 N.Y.S.2d 767).
Levitis alleges that Ikhilov had a pre-existing relationship with the plaintiff's principal, Emir Huner, and that he referred Huner to her to perform legal services in relation to the purchase of the restaurant. Levitis further alleges that Ikhilov assured her and her client that he would timely file the Notification with the Department, and would hold the amount of the purchase price in escrow to pay any sales tax determined to be owed by the seller. In addition, Levitis alleges that Ikhilov promised to prepare, and in fact did prepare, all of the other documentation, including the contract of sale, riders, and schedules necessary to consummate the sale of the restaurant. Ikhilov did not file the notification with the Department until the closing date. As a result of the late filing, the seller's tax liabilities in the amount of $83,333.33 attached to the purchaser. The total purchase price of the restaurant was $90,000.
The plaintiff thereafter commenced the main action against, among others, its attorney Levitis alleging, among other things, legal malpractice arising from her failure to verify that the notification had been timely filed by Ikhilov. Levitis commenced a third-party action seeking contribution and indemnification against Ikhilov alleging, among other things, that he had voluntarily assumed a duty to timely file the notification. Ikhilov moved pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint. The Supreme Court denied the motion.
The Supreme Court properly determined that the third-party complaint, as supplemented by Levitis's affidavit, sufficiently pleaded a cause of action to recover damages for negligence, as it alleged, inter alia, that Ikhilov voluntarily assumed Levitis's duty, as the attorney for the purchaser, to timely file the notification with the Department, and breached that duty (see AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 5 N.Y.3d 582, 594, 808 N.Y.S.2d 573, 842 N.E.2d 471; see also Schwartz v. Greenfield, Stein & Weisinger, 90 Misc.2d 882, 396 N.Y.S.2d 582 [Sup.Ct., Queens County]; cf. Council Commerce Corp. v. Schwartz, Sachs & Kamhi, 144 A.D.2d 422, 424, 534 N.Y.S.2d 1).
Contrary to Ikhilov's contentions, Levitis sufficiently pleaded causes of action seeking both contribution and indemnification (see AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 5 N.Y.3d at 595, 808 N.Y.S.2d 573, 842 N.E.2d 471; McDermott v. City of New York, 50 N.Y.2d 211, 217, 428 N.Y.S.2d 643, 406 N.E.2d 460; see also Mitchell v. New York Hosp., 61 N.Y.2d 208, 218, 473 N.Y.S.2d 148, 461 N.E.2d 285; Cohn v. Lionel Corp., 21 N.Y.2d 559, 563, 289 N.Y.S.2d 404, 236 N.E.2d 634).
Ikhilov's evidentiary submissions did not show that the material facts claimed by Levitis to be facts were not facts at all and that no significant dispute exists regarding them (see Rabos v. R & R Bagels & Bakery, Inc., 100 A.D.3d at 851–852, 955 N.Y.S.2d 109; see also Guggenheimer v. Ginzburg, 43 N.Y.2d at 274–275, 401 N.Y.S.2d 182, 372 N.E.2d 17).
Accordingly, the Supreme Court properly denied Ikhilov's motion pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint.