Opinion
21545-05.
Decided September 4, 2008.
MARC H. SCHNEIDER, P.C., Attorney for Plaintiff, Garden City, New York.
SFERRAZZA KEENAN, PLLC, Attorneys for Defendants Alvin Benjamin, Benjamin Development Co., Inc. and Benjamin Millennium Group, LLC, Melville, New York.
It is, ORDERED that the branch of the motion by the defendants Alvin Benjamin; Benjamin Development Co., Inc.; and Benjamin Millennium Group, LLC, which is for summary judgment dismissing the complaint insofar as it is asserted against them is granted; and it is further
ORDERED that the motion is otherwise denied.
Country Point at Dix Hills (hereinafter "Country Point") is a development of 72 single-family luxury homes. The defendant Beechwood Carmen Building Corp. (hereinafter "Beechwood"), the sponsor of Country Point, purchased the vacant land for the development from the defendant SJB Associates, LLC (hereinafter "SJB"). SJB developed the adjoining parcel as an over-55 community known as the Greens at Half Hollow (hereinafter "the Greens"). The Greens is a much larger development than Country Point, consisting of approximately 1,200 homes with an 18-hole golf course and clubhouse (hereinafter "the Golf Club"). In addition to the golf course, the Golf Club includes indoor and outdoor pools, a sauna, a jacuzzi, tennis courts, and a restaurant, among other things. It is the Golf Club that is the subject of this action.
Since the Country Point property was too small to support its own pool and recreation facility, the agreement of sale between Beechwood and SJB provided that the Country Point homeowners would automatically be mandatory social members of the Greens' Golf Club in exchange for a monthly membership fee. That agreement provides, in pertinent part, as follows:
It is agreed by and between the parties that upon transfer of the Property to the Buyer, the Buyer shall develop the Property and offer it for sale as single family residences which shall require each lot owner and subsequent owner of each lot to become members of a Homeowners' Association (the "Buyer's Homeowners Association"). . . . The Buyer shall cause the Buyer's Homeowners Association to enter into such agreements as may be necessary or appropriate to require either: i) the Buyer's Homeowners Association; or ii) each owner(s) of any lot on the Property; to pay to the Seller, its successors and assigns and/or the Homeowners Association created for the Seller's property ("Seller's Homeowners Association") the established fees (the "Established Fees") for membership by the members of the Buyer's Homeowners Association in, and for use of, only the clubhouse, pool, tennis courts and the facilities related thereto (the "Specific Facilities") in the development on the adjacent parcel presently owned by the Seller and to be constructed thereon.
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The initial Established Fees shall equal $275 per approved lot on the Property. . . . Buyer (for each approved lot owned by Buyer) and each lot owner of the Property shall begin to pay such monthly Established Fees on the first day of the month immediately (the "Initial Date") following the first closing of title to a purchaser of a lot on Seller's property. The parties agree that the Established Fees are not predicated on the actual or anticipated expenses of the Seller's Homeowners Association but rather are an arbitrarily agreed upon amount.
Prior to marketing the homes at Country Point, Beechwood submitted and obtained approval of a CPS-7 application in accordance with the New York State Attorney General's regulations. Beechwood's CPS-7 documents, which were provided to prospective purchasers, contained the required disclosures regarding the benefits, obligations, and amenities of being a homeowner at Country Point, specifically that they were required to become social members of the Golf Club at the Greens. The CPS-7 affidavit provides, in pertinent part, as follows:
The Community is located adjacent to the proposed Greens at Half Hollow Golf Club (the "Golf Club") which is owned by an entity not affiliated with the Sponsor ("Golf Club Owner"). . . . The Golf Club is a privately owned country club and will not form part of the Common Areas owned by the Association. The Sponsor has entered into an agreement with the owner of the Golf Club which provides for all Home Owners in the Community to automatically be mandatory "Social Members" of the Golf Club, at the initial monthly Social Membership fee of $275.00 per Member. This fee may increase annually based on the percentage increase in the cost of operating the facilities. The owner of the Golf Club will have a lien on the Home of Social Members for non-payment of Social Membership fees. As Social Members of the Golf Club all Home Owners will have complete rights and privileges to fully utilize all of the club house facilities including tennis and swimming.
The Association is the plaintiff, Country Point at Dix Hills Home Owners Association, Inc., aNew York not-for-profit corporation.
Social Membership in the Golf Club does not include the privilege of playing golf. Golf Membership in the Golf Club will be limited to 500, and, therefore, there is no guarantee that all purchasers of Homes in the Community who desire such membership will be able to join. No representation is made as to what the golf membership fees and other costs will be in the first or any succeeding year.
Additionally, the Declaration of Covenants, Restrictions, Easements, Charges and Liens, which was recorded in Suffolk County and made part of the CPS-7 documents provided to prospective purchasers, reiterated that social membership in the Golf Club was mandatory for all Country Pointe homeowners. It provides, in pertinent part, as follows:
Each Home Owner is obligated to be a Social Member of the Golf Club and pay the then current Social Membership dues. Each Home Owner is required to remit the Social Membership dues directly to the Golf Club owner on a monthly basis. Unpaid Social Membership dues payable to the Golf Club shall constitute a lien against the members Home as set forth in Article IX of this Declaration.
By a letter dated August 16, 2001, the Attorney General advised Beechwood that its CPS-7 application was granted and that no enforcement action would be taken against it for failure to file an offering plan in compliance with General Business Law § 352-e, provided it fully complied with the representations in its CPS-7 application.
All purchasers of homes in Country Point executed a contract of sale that provides, in pertinent part, as follows:
Purchaser acknowledges and agrees that as disclosed in the Plan, with the purchase of the Lot the Purchaser acknowledges that he/they will automatically thereby become a social member of the Greens at Half Hollow Golf Club (the "Golf Club") at the initial monthly social membership fee of $275 per month (the "Social Membership Fee"), subject to its rules and regulations and be liable for its assessments. The payment of the Social Membership Fee shall commence as of the date of the closing of title by the Purchaser or the date of the first closing of title to a purchaser of a lot on the adjacent property owned by SBJ Associates LLC, whichever shall later occur.
The rules and regulations of the Greens at Half Hollow Club provide, in pertinent part, as follows:
Every [Greens] homeowner is an automatic and mandatory social member of the Club. Membership includes two residents per household. Any additional people living in the residential household must make application to the Club for membership and pay an additional fee.
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A member host must accompany all guests. All club members are entitled to have their houseguests and day guests use the club facilities subject to some limitations of guest's usage of club facilities as set by [the] club.
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Children and grandchildren of members, under the age of 18, may use the club facilities only with the member. Certain restrictions on children will be promulgated and must be observed. This is an adult community and the club exists for the members. Children are not permitted in the bar/lounge and card rooms, locker rooms, saunas, indoor pool or fitness area.
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The use of dining room and other house facilities are limited to members only and their guests. A member host must accompany all guests.
Finally, regarding use of the tennis courts, the rules and regulations of the Greens at Half Hollow Club provide, in pertinent part, as follows:
Guest fees will be charged for guest[s] of members. The same guest may not be introduced more than two (2) times in any month even if introduced by different members. A fee will be charged for each guest enjoying the privileges of the court. The Club Manager will determine fees.
The plaintiff represents all of the homeowners who have purchased homes in Country Point. The plaintiff commenced this action against Beechwood and SJB, among others, for declaratory relief and to recover damages for, inter alia, breach of contract, breach of fiduciary duty, fraud, and unjust enrichment. The gravamen of the plaintiff's amended complaint is that the defendants conspired to financially benefit themselves by selling homes in Country Point with a mandatory social membership in the Greens' Golf Club without fully disclosing the limitations of that membership. Specifically, the plaintiff alleges, inter alia, that the Country Point homeowners pay a social membership fee that is greater than that of the Greens members, that they were required to pay such fee even before the clubhouse was opened, and that their children are not considered members of the Golf Club.
The defendants Alvin Benjamin; Benjamin Millenium Group; LLC, and Benjamin Development Co., Inc. (collectively "the Benjamin defendants") move for summary judgment dismissing the complaint insofar as it is asserted against them. Benjamin Millennium Group is a New York limited liability company and a member of the defendant Greens at Half Hollow, LLC, which is the successor to SJB. Benjamin Millennium Group is also a member of the defendant Greens Golf Club, LLC, which owns the golf course, the clubhouse and related facilities. Benjamin Development Co. is a New York Corporation and was a member of SJB. Alvin Benjamin holds a 50% membership interest in and is the managing member of Benjamin Millennium Group. He is also the president and a shareholder of Benjamin Development Co. In support of their motion for summary judgment, the Benjamin defendants argue that they have no contractual or other relationship with the homeowners who purchased homes in Country Pointe from Beechwood and that they made no representations or promises to the Country Pointe homeowners. The Benjamin defendants also argue that the plaintiff's claims are merely disguised Martin Act claims, for which there is no private right of action because the Attorney General has exclusive jurisdiction to prosecute claims under the Martin Act.
In opposition, the plaintiff contends that the Benjamin defendants are not entitled to summary judgment at this early stage of the litigation inasmuch as there has been no discovery and there are many questions of fact concerning the plaintiff's claims. Additionally, the plaintiff contends that the extensive documentary evidence submitted supports each and every allegation contained in its amended verified complaint.
At a conference with counsel for all parties on May 2, 2008, the court addressed the plaintiff's combined opposition to the various motions by the defendants in this action and the related action and instructed the plaintiff to respond to each motion individually. Contrary to the court's instructions, the plaintiff's opposition papers contain arguments related to this motion as well as the motion for summary judgment by the so-called Kaplan defendants. Moreover, the affirmation of plaintiff's counsel contains a request for leave to serve and file a second amended complaint adding another cause of action and additional defendants. The Benjamin defendants have not responded thereto. Inasmuch as the plaintiff has failed to serve the Benjamin defendants with a notice of cross motion ( see, CPLR 2215) or any other notice that they were required to respond to a motion to amend the complaint, the court is without jurisdiction to grant the relief requested by the plaintiff ( see, Myung Chun v N. Am. Mtge. Co., 285 AD2d 42, 45; see also, J.A. Valenti Elec. Co. v Power Line Constructors, 123 AD2d 604; Matter of Briger, 95 AD2d 887). The plaintiff previously moved for the same relief, which was denied with leave to renew by an order of this court dated March 20, 2008. While the court indicated at the May 2nd conference with counsel that it would review the issue and make a determination, the court expected that it would be properly submitted by way of a renewed motion or cross motion. Accordingly, the court declines to consider the plaintiff's application to amend the complaint in its present form.
The Martin Act
The Martin Act (General Business Law art 23-A) prohibits a broad range of fraudulent and deceitful conduct in the advertisement, distribution, exchange, transfer, sale and purchase of securities. The Attorney General is vested with the exclusive authority to enforce the Martin Act and is granted various investigatory, regulatory, and remedial powers aimed at detecting, preventing, and stopping fraudulent securities practices ( see, Caboara v Babylon, ____AD2d____, 2008 NY Slip Op 06281, *1 [2d Dept 2008] [and cases cited therein]). The Benjamin defendants' contentions to the contrary notwithstanding, private causes of action sounding in common-law fraud and breach of contract are not pre-empted by the Martin Act because the allegations giving rise to the same would support a Martin Act violation ( Id. at *1), nor are the remedies afforded the Attorney General made exclusive by the Martin Act ( Id. at *2). While there is no express or implied private right of action under the Martin Act, private causes of action sounding in common-law fraud and breach of contract may rest upon the same facts that would support a Martin Act violation as long as they are sufficient to satisfy traditional rules of pleading and proof ( Id. at *1; see also, Kramer v W10Z/515 Real Estate Ltd. Partnership, 44 AD3d 457). Accordingly, the court finds that the plaintiff's claims are not barred by the Martin Act.
Summary Judgment
Summary judgment is warranted when there are no issues of fact to be resolved by the trier of fact ( see, Hartford Accident Indemnity Co. v Wesolowski, 33 NY2d 169, 172; Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact ( see, Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century Fox Film Corp., supra at 404). To defeat the motion, the opponent must present evidentiary facts sufficient to raise a triable issue of fact ( see, Freedman v Chemical Constr. Co., 43 NY2d 260, 264). Mere conclusions, expressions of hope, or unsupported allegations or assertions are insufficient to defeat a motion for summary judgment ( see, Zuckerman v City of New York, supra at 562).
The parties agree that the only causes of action asserted against the Benjamin defendants are the third, fourth, fifth, sixth, eighth ninth, tenth, eleventh, thirteenth, fourteenth, fifteenth and sixteenth. The court finds that the Benjamin defendants have established, prima facie, their entitlement to judgment as a matter of law and that the plaintiff has failed to raise any triable issues of fact in opposition thereto.
The Third Cause of Action
This cause of action seeks to recover damages for breach of contract against the Greens Golf Club, LLC, and its principals Benjamin Millennium Group and Alvin Benjamin.
A party may not maintain an action for breach of contract against someone with whom that party is not in privity ( see, Grandell Rehabilitation Nursing Home v Devlin, 10 Misc 3d 1054[A] [and cases cited therein]). The plaintiff does not allege that it or any of the Country Point homeowners are in privity with the Benjamin defendants. Moreover, a member of a limited liability company cannot be held liable for the company's obligations by virtue of its status as a member thereof ( see, Limited Liability Company Law §§ 609, 610; Matias v Palma, 43 AD3d 367). The plaintiff seeks to hold the Benjamin defendants liable despite this statutory proscription. In order to pierce the corporate veil, a doctrine applicable to limited liability companies ( see, Retropolis, Inc. v 14th St. Dev. LLC, 17 AD3d 209, 210), the plaintiff bears a heavy burden of showing that the company was dominated by the owners regarding the transaction attacked and that such domination was an instrument of fraud or otherwise resulted in wrongful or inequitable consequences ( Id. at 210). The court finds that the plaintiff has failed to meet this burden. Accordingly, the Benjamin defendants are entitled to summary judgment dismissing the third cause of action.
The Fourth, Thirteenth, and Fourteenth Causes of Action
These causes of action seek to recover damages for unjust enrichment against the Greens Golf Club, LLC, and its principals Benjamin Millennium Group and Alvin Benjamin.
A cause of action for unjust enrichment is stated when the plaintiff has properly asserted that a benefit was bestowed on the defendants, who will obtain such benefit without adequately compensating the plaintiff therefor. When the defendants have reaped such a benefit, equity and good conscience require that they make restitution ( see, Weiner v Lazard Freres Co., 241 AD2d 114, 119). It is impermissible, however, to seek damages under the theory of quasi contract when the suing party has fully performed on a valid, written agreement, the existence of which is undisputed and the scope of which clearly covers the dispute between the parties ( see, Clark-Fitzpatrick v Long Island Rail Road Co., 70 NY2d 382, 389).
Since the relationship between the Country Pointe homeowners and the defendants is governed by written agreements, the court finds that the plaintiff may not maintain causes of action sounding in unjust enrichment against the Greens Golf Club, LLC, or its principals. Moreover, as previously discussed, the plaintiff has failed to meet its burden of showing that the Benjamin defendants, through their control and dominion over the Greens Golf Club, LLC, perpetrated a wrong or injustice against the Country Point homeowners such that a court of equity will intervene ( see, Treeline Mineola, LLC v Berg, 21 AD3d 1028, 1029). Accordingly, the Benjamin defendants are entitled to summary judgment dismissing the third, thirteenth, and fourteenth causes of action.
The Fifth and Sixth Causes of Action
These causes of action seek to recover damages for breach of the purchase agreement between SJB and Beechwood. The plaintiff contends that the Country Pointe homeowners may enforce that agreement as third-party beneficiaries thereof. The fifth and sixth causes of action are asserted against, inter alia, SJB; Benjamin Development Co.; the Greens at Half Hollow, LLC; the Greens Golf Club, LLC; and their principals Benjamin Millennium Group and Alvin Benjamin.
A third party may sue to enforce a contract made for its benefit ( see, Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652, 655). In order to maintain an action to recover as the third party beneficiary of a contract, the third party must establish that it was the intent of the contracting parties to benefit the third party ( Id. at 655; see also, Amin Realty v K R Constr. Corp., 306 AD2d 230). A third party who is only an incidental beneficiary to the contract may not sue to enforce it ( see, Port Chester Elec. Constr. Corp. v Atlas, supra at 655; Amin Realty v K R Constr. Corp., supra at 232).
Even assuming that the Country Point homeowners were third-party beneficiaries of the purchase agreement between SJB and Beechwood, they must pierce the corporate veils of SJB, the Greens at Half Hollow, LLC, and/or the Greens Golf Club, LLC, in order to hold the Benjamin defendants liable for any breach thereof. As previously discussed, the Benjamin defendants cannot be held liable for the obligations of those limited liability companies simply by virtue of their status as members thereof ( see, Retropolis, Inc. v 14th St. Dev. LLC, supra at 210). The mere fact that Alvin Benjamin signed the purchase agreement on behalf of SJB as a member/manager of Benjamin Development Corp. does not raise an issue of fact implicating his individual liability or that of the Benjamin defendants ( see, Matias v Palma, supra at 368). The amended complaint contains mere bare-bones allegations and is completely devoid of any sufficiently particularized support, as required, that the Benjamin defendants were actually doing business in their individual capacities without regard to formality ( see, Retropolis, Inc. v 14th St. Dev. LLC, supra at 211). Moreover, the plaintiff has submitted no evidence that the privilege of conducting business in the limited-liability-company form was abused so as to warrant piercing the corporate veil and imposing liability on the Benjamin defendants ( see, Worthy v New York City Housing Auth., 21 AD3d 284, 287-288). Accordingly, the Benjamin defendants are entitled to summary judgment dismissing the fifth and sixth causes of action.
The Eighth Cause of Action
In the seventh cause of action, the plaintiff alleges that the Beechwood defendants and their appointees on the board of Country Pointe's initial homeowners association had a fiduciary duty to the plaintiff and the Country Pointe homeowners that was breached. In the eight cause of action, the plaintiff alleges that Benjamin Development Co. and Benjamin Millennium Group, among others, aided and abetted that breach.
The Beechwood defendants are the Beechwood Carmen Building Corp., Country Pointe's sponsor, and the Beechwood Organization, whom the plaintiff alleges is an alter-ego of the sponsor.
New York does not recognize civil conspiracy to commit a tort as an independent cause of action ( see, Sokol v Addison, 293 AD2d 600, 601). Allegations of conspiracy are permitted only to connect the actions of separate defendants with an otherwise actionable tort ( see, Snyder v Puente De Brooklyn Realty Corp., 297 AD2d 432, 435, citing Alexander Alexander of NY v Fritzen, 68 NY2d 968, 969). In order to establish a claim for aiding and abetting a breach of fiduciary duty, the plaintiff must prove that the primary fiduciary committed a violation of its duty, that the aider and abettor had knowledge of the violation, and that the aider and abettor substantially assisted in the violation ( see, Hamlet on Olde Oyster Bay Home Owners Assoc. v Holiday Organization, 12 Misc 3d 1182[A], *14). The court finds that the plaintiff's conclusory allegations are insufficient to establish that the Benjamin defendants knowingly participated in or induced the Beechwood defendants and their appointees on the board of Country Pointe's initial homeowners association to breach their alleged fiduciary duty to the plaintiff. Accordingly, the Benjamin defendants are entitled to summary judgment dismissing the eighth cause of action.
The Ninth through Eleventh Causes of Action
These causes of action allege that the Benjamin defendants aided and abetted the Beechwood defendants and their principals in perpetrating a fraud on the Country Pointe homeowners.
As previously discussed, conspiracy to commit a tort such as fraud is not an independent cause of action in this state. Allegations of conspiracy are permitted only to connect the actions of separate defendants with an otherwise actionable tort ( see, Snyder v Puente De Brooklyn Realty Corp., supra at 435). The elements of fraud are misrepresentation or concealment of a material fact, falsity, scienter, and deception ( see, Barclay Arms v Barclay Arms Assoc., 74 NY2d 644, 646-647). While a plaintiff need not allege and prove that each defendant committed every element of fraud, the plaintiff must establish facts that support an inference that the defendants knowingly agreed to cooperate in a fraudulent scheme or shared a perfidious purpose ( see, Snyder v Puente De Brooklyn Realty Corp., supra at 435). When scienter is lacking, the mere fact that a defendant's otherwise lawful activities may have assisted another in pursuit of guileful objectives is not a sufficient basis for a finding that he or she conspired to defraud ( Id. at 435).
The plaintiff has failed to adduce evidence demonstrating that the Benjamin defendants made any misrepresentations to or concealed any material matters from the Country Pointe homeowners. Moreover, the record does not support an inference that the Benjamin defendants knowingly agreed to cooperate in a fraudulent scheme or that they knowingly conspired with the Beechwood defendants to defraud the Country Pointe homeowners. Accordingly, the Benjamin defendants are entitled to summary judgment dismissing the ninth through eleventh causes of action.
The Sixteenth Cause of Action
This cause of action alleges that the defendants violated the Donnelly Act by tying the purchase of a home in Country Pointe, which is a non-age restricted development, with mandatory membership in the Greens Golf Club, which is located in an age-restricted development.
The Donnelly Act (General Business Law § 340 et seq.) is New York's antitrust law. It provides, in pertinent part, that every contract agreement, arrangement, or combination restricting competition or the free exercise of trade, business, or commerce in the state is illegal and void as against public policy. The purpose of the act is to promote competition in the marketplace, and it requires a conspiracy or relationship between two or more entities acting in concert to unreasonably restrain trade or competition ( see, Hamlet on Olde Oyster Bay Home Owners Assoc. v Holiday Organization, supra at *16 [and cases cited therein]).
The requirements for pleading tying claims under the Donnelly Act are identical to those of the Federal Sherman Antitrust Act. A plaintiff must allege: (1) two distinct products, i.e., a tying product and a tied product, (2) economic coercion, (3) market power in the tying product market, (4) anti-competitive impact in the tied product market, and (5) involvement of a substantial amount of commerce ( see, Pyramid Co. of Rockland v Mautner, 153 Misc 2d 458, 462, citing Gonzalez v St. Margaret's Housing Dev. Fund Corp., 880 F2d 1514 [2d Cir] and Power Test Petroleum Distrib. v Calcu Gas, Inc., 754 F2d 91). The plaintiff's identification of only a single development (Country Pointe) that has been made subject to the alleged tie-in arrangement is insufficient to allege involvement of a substantial amount of commerce. Tying arrangements are not condemned under the antitrust law unless a substantial volume of commerce is foreclosed thereby ( Id. at 462). Uniqueness alone does not create a monopoly or result in a violation of the Donnelly Act ( see, Hamlet on Olde Oyster Bay Home Owners Assoc. v Holiday Organization, supra at *17). Additionally, the plaintiff has not demonstrated how the alleged restrictions imposed by the sponsor constitute an unreasonable restraint on trade or impair competition in the local real estate market as a whole, as opposed to simply having a claimed adverse effect on the Country Pointe homeowners ( see, Benjamin of Forest Hills Realty v Austin Sheppard Realty, 34 AD3d 91, 97). Finally, a restraint-of-trade Donnelly Act violation can only occur when the alleged conspirators are in competition with one another or with the plaintiff ( Id. at 98). The plaintiff has made no such showing. Accordingly, the Benjamin defendants are entitled to summary judgment dismissing the sixteenth cause of action.
The Fifteenth Cause of Action
This cause of action is for a judgment declaring, inter alia, that the practices of the Greens Golf Club are invalid.
As a general rule, a court should not entertain an action for declaratory judgment when there is no necessity for doing so ( see, Holtzman v Supreme Court of the State of New York, 152 AD2d 724, 725). A declaratory judgment action requires an actual controversy between genuine disputants with a stake in the outcome and may not be used as a vehicle for an advisory opinion ( see, Watson v Aetna Cas. Sur. Co., 246 AD2d 57, 62, citing Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3001:3, at 433). In addition to the requirement that the controversy be genuine, the declaratory judgment may only be used for a justiciable controversy. If the court has jurisdiction over the subject matter and if the dispute is genuine and not academic or moot, the dispute will be deemed justiciable ( Id. at 62; see also, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3001:4, at 434). In view of the fact that the Benjamin defendants are not liable to the plaintiff, the court finds that there is no justiciable controversy between the plaintiff and the Benjamin defendants. Accordingly, the Benjamin defendants are entitled to summary judgment dismissing the fifteenth cause of action as academic.
Finally, in opposing the Benjamin defendants' motion for summary judgment, the plaintiff must lay bare its proof in evidentiary form ( see, Badman v Civil Service Employees Assn., 91 AD2d 858). The plaintiff may not rely on the mere hope that evidence sufficient to defeat the motion may be uncovered during the discovery process ( see, Hess v Schwartz, 7 Misc 3d 1011[A] [and cases cited therein]). Absent an affidavit from the plaintiff demonstrating that facts necessary to oppose the motion exist but cannot be stated without obtaining discovery from the defendants, the court refuses to deny the motion pursuant to CPLR 3212(f). Accordingly, the complaint is dismissed insofar as it is asserted against the Benjamin defendants.