Opinion
01-28-2016
Keith DOYLE, Plaintiff–Appellant, v. ICON, LLC doing business as "R Bar," et al., Defendants–Respondents.
Cooper & McCann, LLP, New Rochelle (Gary G. Cooper of counsel), for appellant. Bracewell & Giuliani LLP, New York (Kelly Koscuiszka of counsel), for respondents.
Cooper & McCann, LLP, New Rochelle (Gary G. Cooper of counsel), for appellant.
Bracewell & Giuliani LLP, New York (Kelly Koscuiszka of counsel), for respondents.
MAZZARELLI, J.P., ACOSTA, ANDRIAS, RICHTER, JJ.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered on or about December 19, 2014, which, to the extent appealed from, denied plaintiff's motion for summary judgment as to liability on his claims for conversion and unjust enrichment, unanimously affirmed, without costs.
Triable issues of fact as to the nature of plaintiff's interest in defendant Icon, LLC, if any, at the relevant time preclude summary judgment in his favor on his causes of action for conversion and unjust enrichment (see Colavito v. New York Organ Donor Network, Inc., 8 N.Y.3d 43, 49–50, 827 N.Y.S.2d 96, 860 N.E.2d 713 [2006] ; Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182, 919 N.Y.S.2d 465, 944 N.E.2d 1104 [2011] ).
Contrary to plaintiff's contention, the Limited Liability Company Law, to which Icon is subject in the absence of a written operating agreement (see Matter of Eight of Swords, LLC, 96 A.D.3d 839, 946 N.Y.S.2d 248 [2d Dept.2012] ), does not preclude the members of an informally operated limited liability company from unanimously agreeing upon a course of conduct when faced with extensive losses. Unlike in Mizrahi v. Cohen, 104 A.D.3d 917, 920, 961 N.Y.S.2d 538 (2d Dept.2013), lv. dismissed 21 N.Y.3d 968, 970 N.Y.S.2d 493, 992 N.E.2d 421 (2013), upon which plaintiff relies, the record does not establish that the parties intended to treat defendant Sean Cunningham's infusion of capital as a loan. To the contrary, the individual defendants testified that, at a capital call meeting held in April 2006, plaintiff voluntarily withdrew from or abandoned his interest in Icon.