Opinion
Index No. 501184/12
12-08-2023
DR. JONATHAN MA WERE, Plaintiff, v. JOEL LANDAU, JACK BASCH, LEIBEL RUBIN, MARVIN RUBIN, SOLOMON RUBIN, JUDITH EISEN, GARFUNKEL WILD, P.C. and JOHN DOES 1-10, Defendants. v. And v. ALLURECARE MANAGEMENT LLC, THE ALLURE GROUP INC., THE ALLURE GROUP, LLC, ALLIANCE HEALTH ASSOCIATES, INC., ALLIANCE HEALTH PROPERTIES, LLC, ST. MARKS BROOKLYN ASSOCIATES LLC and ST. MARKS AVENUE PROPERTY, LLC, Nominal Defendants.
Unpublished Opinion
At an IAS Term, Part Comm-4, of the Supreme Court of the State of New York held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn. New York, on the 8th day of December 2023.
PRESENT: HON. LAWRENCE KNIPEL, Justice.
Lawrence S. Knipel, Judge
The following e-filed papers read herein:
NYSCEF Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed
591-592, 654-655,872
Opposing Affidavits (Affirmations)
806, 821,813, 816, 823, 827, 890
Affidavits/Affirmations in Reply
890,896,898,913,924
Other Papers: Affidavits/Affirmations in Support-
686,713,715,729,738,761,812, 813
Upon the foregoing papers, defendants Judith Eisen and Garfunkel Wild, P.C. (GWPC) (collectively, Law Firm Defendants) move (in Motion Sequence [MS] # 21) for an order, pursuant to CPLR 3212, (1) granting leave of court to move for summary judgment on "good cause" shown; (2) granting summary judgment and dismissing, with prejudice, the claims of plaintiff Dr. Jonathan Mawere against the Law Firm Defendants in their entirety or, in the alternative, making an order specifying incontrovertible facts deemed established for all purposes in the action. Defendants Joel Landau, Jack Basch, Leibel Rubin, Marvin Rubin, Solomon Rubin, and Nominal Defendants Allure Care Management LLC, the Allure Group Inc., the Allure Group LLC, Alliance Health Associates Inc. (AHA), Alliance Health Property LLC (AHP), St. Marks Brooklyn Associates LLC and St. Marks Avenue Property LLC (collectively, Alliance Defendants) move (in MS # 22) for an order, pursuant to CPLR 3212, (1) granting leave of court to move for summary judgment on "good cause" shown; (2) granting summary judgment and dismissing with prejudice plaintiff s claims against the Alliance Defendants in their entirety, in the alternative, making an order specifying incontrovertible facts deemed established for all purposes in the action. Plaintiff cross-moves (in MS # 24) for an order, pursuant to CPLR 3212, granting partial summary judgment dismissing with prejudice the Alliance Defendants' Twelfth Defense under the Statute of Frauds as set forth in their Amended Supplemental Answer to Plaintiff s Third Amended Verified Complaint.
Background
Plaintiff commenced this action seeking, among other relief, damages for breach of contract and breach of fiduciary duty stemming from the purchase and acquisition by the Alliance Defendants of Ruby Weston Manor (RWM), a financially troubled nonprofit nursing home facility in Brooklyn. Plaintiff is a physician and licensed nursing home administrator who serves as the Chief Operating Officer of Queens Boulevard Extended Care Facility. According to plaintiffs extant pleading (Third Amended Verified Complaint), in 2010 he learned of the opportunity to purchase the assets of RWM along with another financially troubled nursing home facility, Marcus Garvey Residential Rehab Pavilion, Inc. (MG). In or around July 2010, plaintiff informed Landau, his business associate, of the opportunity to acquire RWM and that he was invited to make a proposal. Landau was the owner of Intelimed Group (Intelimed), a health care consulting business. Plaintiff alleges that Landau agreed to a joint venture with plaintiff to acquire RWM, with Landau promising to finance the acquisition and plaintiff promising to operate the facility on a full-time basis, with both parties sharing equally (50% each) in the profits and losses generated by the venture. Plaintiff states that in November 2010, he and Landau engaged the Law Firm Defendants to provide legal representation for the venture. Because New York State law required nursing homes to be owned by single purpose entities, Intelimed was ineligible to acquire RWM. Hence, AHA Was incorporated to serve as a single purpose entity for the acquisition of RWM, and AHP was formed to purchase the real property underlying the facility.
Plaintiff alleges, in substance, that Landau and Basch (who was later brought in to supplement the financing of the acquisition) agreed to jointly purchase and operate the facilities together with plaintiff, through operating companies AHA and AHP, but that Landau and Basch, together with Leibel Rubin, Marvin Rubin, and Solomon Rubin excluded plaintiff from the transaction with the assistance of the Law Firm Defendants. AHA ultimately acquired RWM's facility in May 2013 for $4.5 million, with AHP acquiring title to the property underlying the facility for $26.5 million.
Over the following four years from the commencement of this action in 2012, the parties engaged in a course of motion practice seeking dismissal and leave to amend pleadings, as well as appeals of this court's orders addressing the motions for dismissal and leave to amend. The parties entered into stipulations extending time to serve responsive pleadings before a case scheduling order setting forth a schedule to complete outstanding discovery was issued on June 22, 2018. The case scheduling order set a note of issue date for July 31, 2018, but scheduled substantial discovery practice following said date.
The case scheduling order alluded to a specific dispute as to whether defendants may withhold certain documents from plaintiff as protected by the attorney-client privilege. Plaintiff had argued that he was represented by the Law Firm Defendants individually in the course of the transaction and, thus, may waive any attorney-client privilege. On November 9, 2018, the court issued an order of reference for a Special Referee to hear and report on the issue of whether the Law Finn Defendants represented plaintiff. A hearing was thereafter conducted before the Special Referee where evidence was received and testimony was offered by plaintiff, Landau, Eisen, Basch and GWPC partner Christina Van Wort. Following the hearing, the Special Referee issued a report, dated May 4, 2020, stating that plaintiff failed to prove, by a preponderance of the credible evidence, that GWPC was his attorney. The Special Referee noted, among other things, that GWPC gave no independent legal advice to plaintiff and advised him to obtain independent counsel; that plaintiff did not request GWPC to render legal services on his behalf and likewise did not render legal services to him individually; that GWPC represented Intelimed and subsequently AHA; and that GWPC was not paid by plaintiff. The Special Referee stated that "[t] he relevant factors all indicate the absence of an attorney-client relationship."
By order dated August 17, 2020, the court denied plaintiff's motion to reject and vacate the Special Referee's report and granted the cross-motion of the Alliance Defendants and Law Firm Defendants to confirm the report. The court stated that the Special Referee made unequivocal findings that plaintiff did not seek legal advice from the Law Firm Defendants, that the Law Finn Defendants were not paid by plaintiff, that the Law Firm Defendants' clients were Intelimed and AHA, and that this representation of Intelimed and AHA related to the venture and not plaintiffs individual issues. The court stated that these findings all support the Special Referee's ultimate determination that plaintiff was not a client of the Law Finn Defendants.
Ori June 16, 2023, the Law Firm Defendants brought a motion for summary judgment dismissing the four causes of action asserted against them in the Third Amended Verified Complaint, sounding in legal malpractice, breach of fiduciary duty, aiding and abetting breach of fiduciary duty and conspiracy to breach fiduciary duly. On June 22, 2023, the Alliance Defendants brought a motion for summary judgment dismissing the three causes of action interposed against them in the Third Amended Verified Complaint, sounding in breach of contract against Landau, breach of contract against Landau and Basch and against all Alliance Defendants for the imposition of a constructive trust.
Pursuant to CPLR 3212 (a), courts have "considerable discretion to fix a deadline for filing summary judgment motions," so long as the deadline is not "earlier than 30 days after filing the note of issue or (unless set by the court) later than 120 days after the filing of the note of issue, except with leave of court on good cause shown" (Brill v City of New York, 2 N.Y.3d 648,: 651 [2004]; see Torres v Serlin Bldg. Ltd. Partnership, 208 A.D.3d 1195, 1196 [2d Dept 2022]). While the instant motions were made more than 120 days after the filing of the note of issue, the court finds good cause exists for the delay. "Significant.outstanding discovery may, in certain circumstances, constitute good cause for a delay in making a motion for summary judgment" (Avezbakiyev v City of New York, 104 A.D.3d 888, 888 [2d Dept 2013]; see Gonzalez v 98 Mag Leasing Corp., 95 N.Y.2d 124, 129 [2000]; Panzavecchia v County of Nassau, 211 A.D.3d 846 [2d Dept 2022]; Fuczynski v 144 Div., LLC, 208 A.D.3d 1153, 1155 [2d Dept 2022]). The Court of Appeals has held that where discovery was permitted to continue after the filing of the note of issue, "good cause" existed to excuse non-compliance with the 120-day time limitation (Gonzalez, 95 N.Y.2d at 129). Here, the case scheduling order contemplated that significant discovery would take place following the filing of the note of issue. Indeed, the issues regarding production of allegedly privileged documents required the reference to the Special Referee, necessitating additional time for a hearing and drafting of a report and recommendations. It is noted that no party sought to vacate the note of issue, nor has any prejudice or procedural disadvantage been demonstrated as a result of the timing of the instant motions. Plaintiff has provided comprehensive opposition to both motions. In short, the concerns behind the statutory 120-day limitation, "disrupting the court's calendar and leaving an adversary little or rip time to reply" (Gonzalez, 95 N.Y.2d at 128) are not shown to be present.
Law Firm Defendants' Motion for Summary Judgment
The existence of an attorney-client relationship is an essential element of a cause of action to recover damages for legal malpractice (see Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 A.D.3d 790, 792 [2d Dept 2015]). "Pursuant to the doctrine of [the] law of the case, judicial determinations made during the: course of . . . litigation before final judgment is entered may have preclusive effect provided that the parties had a full and fair opportunity to litigate the initial determination" (Sterngass v Town Bd. of Town of Clarks town, 43 A.D.3d 1037, 1037 [2d Dept 2007]; see Ruffino v Green, 72 A.D.3d 785, 786 [2d Dept 2010]). The law of the case doctrine "is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned" (Martin v City of Cohoes, 37 N.Y.2d 162, 165 [1975]). "The doctrine applies only to legal determinations that were necessarily resolved on the merits in the prior decision and to the same questions presented in the same case" (RPG Consulting, Inc. v Zormati, 82 A.D.3d 739, 740 [2d Dept 2011] [citations and internal quotation marks omitted]). As it was already determined in this litigation, by the report of the Special Referee and the order of this court confirming the report, that the Law Film Defendants had no attorney-client relationship with plaintiff, the cause of action for legal malpractice is precluded under the l aw of the case doctrine.
The cause of action alleging breach of fiduciary duty is duplicative of the legal malpractice cause of action, since both claims arise from the same facts and do not allege distinct damages (see Biberaj v Acocella, 120 A.D.3d 1285, 1287 [2d Dept 2014]; Palmieri v Biggiam, 108 A.D.3d 604, 608 [2d Dept 2013]; Tsafaiinos v Lee David Auerbach, PC, 80 A.D.3d 749, 750 [2d Dept 2011]). At any rate, as it was judicially determined that no attorney-client relationship existed between the Law Firm Defendants and plaintiff, there is no fiduciary duty by reason of an attorney-client relationship, and there is no showing of any other relationship between the Law Firm Defendants and plaintiff which rose to the level of a fiduciary.
The elements of a cause of action for aiding and abetting breach of fiduciary duty are: "(1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that plaintiff suffered damage as a result of the breach" (Schroeder v Pinterest Inc., 133 A.D.3d 12, 24-25, [1st Dept 2015]). The crux of plaintiffs claim is that the Law Firm Defendants, through actions which included "ghostwriting" and "backdating" documents to conceal any interest plaintiff had in the alleged joint venture, assisted the Alliance Defendants in dishonoring the alleged prior agreements made with plaintiff regarding an equity interest in the joint venture. However, where a plaintiff cannot make out an underlying claim for breach of fiduciary duty, an aiding and abetting claim cannot stand (see Oddo Asset Mgt. v Barclays Bank PLC, 19 N.Y.3d 584, 594 [2012]; McBride v KPMG Inti., 135 A.D.3d 576, 579 [1st Dept 2016]; Palmetto Partners, L.P. v AJW Qualified Partners, LLC, 83 A.D.3d 804, 809 [2d Dept 2011]). Plaintiff's prior claim for breach of fiduciary duty against Landau and Basch was dismissed by this court's order of May 15, 2013, which order was affirmed on appeal (Mawere v Landau, 130 A.D.3d 986 [2d Dept 2015]). The Appellate Division held that the breach of fiduciary duty claim was properly dismissed as duplicative of the breach of contract causes of action, since those causes of action were based on the same facts and sought essentially identical damages (Mawere, 130 A.D.3d at 990, citing Canzona v Atanasio, 118 A.D.3d 841, 843 [2d Dept 2014]; Brooks v Key Trust Co. NA., 26 A.D.3d 628, 630 [3d Dept 2006]). Because the existing claims against Landau and Basch are grounded in contract (i.e. breach of an oral agreement to include plaintiff in a joint venture to acquire RWM), an aiding and abetting claim cannot be maintained against the Law Firm Defendants. There is no cognizable cause of action for aiding and abetting a breach of contract (see Markowits v Friedman, 144 A.D.3d 993, 996 [2d Dept 2016]; Pomerance v McGrath, 124 A.D.3d 481, 484 [1st Dept 2015]).
"New York does not recognize civil conspiracy to commit a tort as an independent cause of action, and a cause of action alleging conspiracy to commit a tort stands or falls with the underlying tort" (Williams v Williams, 149 A.D.3d 1145, 1146 [2d Dept 2017]; see Blanco v Polanco, 116 A.D.3d 892, 895-896 [2d Dept 2014]; Barns & Farms Realty, LLC v Novelli, 82 A.D.3d 689, 691 [2d Dept 2011]). Since the cause of action for breach of fiduciary duty was properly dismissed as against Landau and Basch and not subject to any grant of leave to replead, the cause of action alleging conspiracy to breach fiduciary duty cannot stand (see Williams, 149 A.D.3d at 1146, Arvanitakis v Lester, 145 A.D.3d 650, 652-653 [2d Dept 2016]).
As a result, the Law Finn Defendants' motion for summary judgment dismissing the Third Amended Verified Complaint as against them is granted.
Alliance Defendants' Motion for Summary Judgment
"'The essential elements of a joint venture are an agreement manifesting the intent of the parties to be associated as joint venturers, a contribution by the coventurers to the joint undertaking (i.e., a combination of property, financial resources, effort, skill or knowledge), some degree of joint proprietorship and control over the enterprise; and a provision for the sharing of profits and losses'" (Kaufman v Torkan, 51 A.D.3d 977, 979 [2d Dept 2008], quoting Tilden of NJ. v Regency Leasing Sys., 230 A.D.2d 784, 785-786 [2d Dept 1996] [internal quotation marks omitted]; see Commander Terms. Holdings, LLC v Poznanski, 84 A.D.3d 1005, 1009 [2d Dept 2011]). "To form a binding contract, there must be a meeting of the minds, such that there is a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms" (Stonehill Capital Mgt. LLC v Bank of the W, 28 N.Y.3d 439, 448 [2016] [citation and internal quotation marks omitted]; see Can Man Carting, LLC v Spiezio, 165 A.D.3d 1029, 1030 [2d Dept 2018]). '"[T]he existence of a binding contract is not dependent on the subjective intent of [the parties]*" (Gator Hillside Vil, LLC v Schlickman Realty, Inc., 158 A.D.3d 742, 743 [2d Dept 2018], quoting Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 N.Y.2d 397, 399 [1977]). Instead, a court must look to "'the objective manifestations of the intent of the parties as gathered by their expressed words and deeds'" and should not place '"disproportionate emphasis'" "'on any single act, phrase or other expression,'" but should instead look to "'the totality of all of these, given the attendant circumstances, the situation of the parties, and the objectives they were striving to attain'" (Kolchins v Evolution Mkts., Inc., 31 N.Y.3d 100, 106 [2018], quoting Brown Bros. Elec. Contrs., 41 N.Y.2d at 399-400; see 223 Sam, LLC v 223 15 th St., LLC, 161 A.D.3d 716, 718 [2d Dept 2018]).
In his affidavit in support of the Alliance Defendants' motion for summary judgment, Landau avers that in mid-2010, he discussed the idea of plaintiff being part of an acquisition team for RWM and having plaintiff act as an administrator after any potential acquisition. Landau states that he and plaintiff did not discuss ownership shares or agree on any specific equity or ownership split in RWM or the entity or entities that might acquire it, nor did they reach agreement on any other potential terms related to acquiring or owning RWM, including plaintiff s exact role Or his compensation, nor did they discuss who would be responsible for any liabilities of the entity or entities that made the acquisition. Landau asserts that there would have been no point to discussing this issue since the acquiring entity or entities would be incorporated and therefore have limited liability.
Landau states that he and plaintiff did not discuss a specific term or timeframe for pursuing the acquisition of RWM or how long they would continue to own and operate the facility, and that Landau's intention was that the acquiring entity would own and operate RWM indefinitely. Landau avers that his initial intention was that Intelimed would pursue the acquisition of RWM, but subsequently understood that a special purpose entity was required to be formed for the potential RWM acquisition. Consequently, AHA was incorporated on or about November 22, 2010, and AHP was formed on or about March 4, 2011 as a limited liability vehicle to acquire the RWM real estate.
Landau asserts that plaintiff never made any contributions of capital to either APLA or AHP. Landau states that he and plaintiff began discussing specific shares in the entity that would purchase RWM's operations, but not the: underlying property:, in November 2010, and that on or about November 12 and 14, 2010, he emailed plaintiff asking for "comments on a proposal in which plaintiff would have between 3-7% "of the entity that will own and operate" RWM, but "not the real property should that be acquired as well." Landau maintains that he and plaintiff discussed the possibility of plaintiff receiving between 3% and 10% of equity in AHA, but ultimately, despite months of discussions, he and plaintiff never reached an agreement on the terms of him becoming employed at RWM or a minority equity owner in AHA or AHP.
Landau cites to an email from plaintiff, dated January 26, 2011, in which plaintiff wrote, among other things, that one issue still "needing resolution," Was whether "the transaction value is inclusive of the real estate." Landau maintains that, at all times, he expected and intended that any agreement that he might reach regarding the acquisition of RWM would be put in writing and signed, and understood that plaintiff felt the same way. Landau asserts that plaintiff never transferred any money to him in connection with any potential nursing home acquisition nor, to his knowledge, did he ever transfer any money to Basch Leibel Rubin, Marvin Rubin, or Solomon Rubin.
In his affidavit in support of the Alliance Defendants' motion for summary judgment, Basch makes similar averments to Landau's. Basch states that he participated in several discussions with plaintiff concerning the potential acquisition of RWM, but did not discuss ownership shares or agree on any specific equity or ownership split in RWM or the entity/entities that might acquire it nor did they reach agreement on any other potential terms related to acquiring or owning RWM, including plaintiff's exact role or his compensation. Basch asserts that he and plaintiff did not discuss a specific term or timeframe for pursuing the acquisition of RWM or how long they would continue to own and operate it, and that his intention was that the acquiring entity would own and operate RWM indefinitely. Basch avers that he did not discuss who would be responsible for any liabilities of the entity' or entities that made the acquisition, and there would be no point to discussing this issue since the acquiring entity or entities would be incorporated and therefore have limited liability.
Basch states that he expected and intended that any agreement that he might reach regarding the acquisition of RWM would be put in writing and signed. Basch maintains that, ultimately, no agreement was reached as to plaintiffs employment at RWM or to plaintiff becoming an equity owner in AHA or A HP and that plaintiff never transferred any money to Basch nor, to his knowledge, did he ever transfer any money to Joel Landau, Leibel Rubin, Marvin Rubin, or Solomon Rubin.
While plaintiff submits his own affidavit attesting that oral joint ventures existed between plaintiff and Landau to: share 50% each of profits and losses of RWM, and subsequently with plaintiff, Landau and Basch whereby plaintiff and Landau would share
50% each in profits and losses after accounting for Basch's share, in light of the testimony and documentary proof adduced in this matter, the affidavit is insufficient to demonstrate that an enforceable agreement with respect to all material terms was ever reached by the parties.
"[A] mere agreement to agree, in which a material term, is left for future negotiations, is unenforceable" (Joseph Martin, Jr., Delicatessen, Inc. v Schumacher, 52 N.Y.2d 105, 109 [1981]). Put another way, an agreement "which merely creates the framework for continued discussions aimed at the execution of a binding agreement" is insufficient (Schneider v Jarmain, 85 A.D.3d 581, 582 [1st Dept 2011]). At his examination before trial [EBT], plaintiff testified that oral joint venture agreements were made with Landau in July 2010 and then with Landau and Basch in December 2010 (Plaintiffs EBT Transcript, NYSCEF Doc No 721 [Plaintiffs EBT] at 7). Plaintiff testified that at the time of the alleged oral venture agreement with Landau and Basch, he did not know what Basch's or Landau's percentage of interest would be in RWM (Plaintiff s EBT at 29-33), nor was an agreement reached with respect to plaintiff s compensation for his potential services as an administrator or operator at RWM (Plaintiff s EBT at 64-65). According to a January 26, 2011 email chain between plaintiff and Landau, plaintiff offered to accept a 10% interest (with no mention of the alleged agreement of 50% each with Landau), and there was no agreement as to whether plaintiff would receive any equity interest in the entity that acquired the land underlying the RWM property (Email Chain, January 26, 2011, NYSCEF Doc No. 734). Thus, even if the parties contemplated entering into joint ventures in 2010, the record indicates that several material terms were left unresolved as of January 2011.
Further, "[i]t is well settled that, if the parties to an agreement do not intend it to be binding upon them until it is reduced to writing and signed by both of them, they are not bound and may not be held liable until it has been written out and signed" (Scheck v Francis, 26 N.Y.2d 466, 469-470 [1970]). Plaintiff anticipated entering into a finalized written agreement as shown by a separate January 26, 2011 email to Landau, wherein plaintiff wrote;
''Joel, I know you and I have repeatedly discussed the Ruby Weston deal from when I introduced you to Francis Purcell. I need to finalize our agreement. We previously agreed to 7% of the total sale price of the facility as my share but had several discussions in which we discussed increasing the percentage to 10%. You indicated in our discussions that you could guarantee 7% but may be willing to increase the amount after you establish what you were getting paid from the transaction. You also informed me that you settled with Jack Basch the night before our trip to Albany, New York. Now that you have known for a couple, of weeks your share, I would like to finalize our my [sic] portion as we now have everything to make this decision. As you know, you and I have discussed this a lot and at this point I know you agree that we should close this up and finalize the written agreement. I am uncomfortable with the persistent deferral of this issue and I would like to close this up today." (E-Mail, January 26, 2011, NYSCEF Doc No 735).
It is further noted that Eisen testified at the hearing before the Special Referee that the Department of Health, as part of the application process for receivership of RWM, asked for a shareholder agreement "to move the receivership [of RWM] along." (Hearing Transcript, NYSCEF Doc No 659 at 171). A written proposed shareholder agreement identifying a 7% interest in AHA in favor of plaintiff was produced in April 2011, but was not signed by any party (Proposed Shareholder Agreement, April 2011, NYSCEF Doc No. 736). There being no finalized written agreement: memorializing the material terms of the joint venture as intended by the parties, any alleged oral agreement regarding same is not binding and enforceable (sec Langer v Dadab hoy, 44 A.D.3d 425, 426 [1st Dept 2007] [court noting that "documentary evidence in the form of e-mails conclusively established that the parties intended to finalize their agreement in a writing, which never materialized, inasmuch as negotiations had been ongoing and were eventually discontinued with plaintiff. As such, there was no mutual assent or meeting of the minds as to the proposed joint venture" [citations omitted]).
Moreover, in the absence of an express contractual term fixing the duration of the agreement or other proof establishing the intention of the parties in that regard, the alleged oral joint venture agreement was terminable at will by Landau and/or Basch (see Rutecki v Gow & Co., 289 A.D.2d 1066, 1067 [4th Dept 2001]). Plaintiff has not demonstrated that the object of the joint venture was a specified result or the completion of a specified piece of work, i.e. the mere acquisition of RWM and property. Rather, plaintiff alleges that the alleged oral joint venture agreements included the ownership, operation and administration of the facility following the acquisition. Thus, it cannot be presumed that the parties intended the relationship to continue "until the accomplishment of a particular undertaking" (Rutecki, 289 A.D.2d at 1067 [citations omitted]), making the alleged joint venture terminable: at will. It is not in dispute that Landau and Basch eventually proceeded with the acquisition of RWM to the exclusion of plaintiff.
Accordingly, the Alliance Defendants established entitlement to summary judgment on the first and second causes of action for breach of contract as the record demonstrates that no enforceable joint venture agreement was reached between plaintiff and Landau/Basch in July or December 2010 which incorporated ail material terms. Plaintiff has not presented evidence sufficient to raise an issue of fact.
As a result, the first and second causes of action in the third amended verified complaint are dismissed.
Turning to the remaining seventh cause of action seeking a constructive trust, plaintiff must show (1) a confidential or fiduciary relationship between the parties, (2) a promise, (3) a transfer of an asset in reliance upon a promise, and (4) unjust enrichment flowing from the breach of the promise (see County of Nassau v Expedia, Inc., 120 A.D.3d 1178, 1181 [2d Dept 2014]). While plaintiff asserts that he paid $3,000 for a CPA Report/Purchase Analysis for the acquisition of RWM, and expended time and effort communicating and negotiating with RWM's and MG's Board of Directors in furtherance thereof, there was no transfer from plaintiff to any of tire Alliance Defendants, and the equitable remedy of a constructive trust is unavailable where "there has been no transfer of property to defendant in reliance upon a fiduciary relationship" (Goraya v All, 194 A.D.2d 712, 713 [2d Dept 1993]; see Sierra v Garcia, 168 A.D.2d 277, 278 [1st Dept 1990]). Regardless, because no enforceable joint venture agreement was reached between plaintiff and any of the Alliance Defendants, no fiduciary relationship existed to support the grant of a constructive trust.
The absence of an enforceable joint venture agreement between plaintiff and Landau/Basch is further grounds for dismissal of the causes of action interposed against the Law Firm Defendants for aiding and abetting breach of fiduciary duties and conspiracy to breach fiduciary duties.
Although plaintiff refers to the Appellate Division's decision finding plaintiff had sufficiently pleaded in his proposed amended complaint a cause of action for breach of contract based on an oral joint venture agreement and for the imposition of a constructive trust (Maware v Landau, 170 A.D.3d 826 [2d Dept 2019]), said decision "merely address[ed] the adequacy of the [pleading], and [did] not reach the substantive merits of a [plaintiffs] cause[s] of action" (Lieberman v Green, 139 A.D.3d 815, 816 [2d Dept 2016] [citation omitted]). The standard to test the sufficiency of a cause of action in a proposed amended pleading is the same utilized for a motion to dismiss under CPLR 3211 (a) (7) (see Lucido v Mancuso, 49 A.D.3d 220, 225 [2d Dept 2008]). A prior decision decided under the more liberal standards applicable to motions to dismiss pursuant to CPLR 3211 (a) (7) does not preclude a subsequent grant of summary judgment (see Caso v Miranda Sambursky Slone Sklar in Verveniotis LLP, 180 A.D.3d 611, 613 [1st Dept 2020]).
The court has considered plaintiffs remaining arguments and finds them unpersuasive.
Accordingly, the Alliance Defendants' motion for summary judgment is granted, and the Third Amended Verified Complaint is dismissed in its entirety.
In light of this disposition, plaintiff s cross motion to dismiss the Alliance Defendants' Twelfth Defense under the Statute of Frauds as set forth in their Amended Supplemental Answer To Plaintiffs Third Amended Verified Complaint is denied as academic.
The foregoing constitutes the decision, order and judgment of the court.