Opinion
10455 Index 155269/17
12-03-2019
Robert PRITSKER, Plaintiff–Appellant, v. OPPENHEIMER ACQUISITION CORP., et al., Defendants–Respondents.
Robert Pritsker, appellant pro se. Tannenbaum Helpern Syracuse & Hirschtritt, LLP, New York (Richard Trotter of counsel), for respondents.
Robert Pritsker, appellant pro se.
Tannenbaum Helpern Syracuse & Hirschtritt, LLP, New York (Richard Trotter of counsel), for respondents.
Friedman, J.P., Oing, Singh, Moulton, JJ.
Judgment, Supreme Court, New York County (Gerald Lebovits, J.), entered May 14, 2018, dismissing the action, unanimously affirmed, without costs.
This is, essentially, an action for conversion. Plaintiff's fraud allegations do not constitute independent claims for fraud and constructive fraud; rather, they form the building blocks for his argument that equitable estoppel should toll the statute of limitations for conversion (see Simcuski v. Saeli , 44 N.Y.2d 442, 448, 406 N.Y.S.2d 259, 377 N.E.2d 713 [1978] ).
The complaint fails to state a cause of action for conversion. Money that allegedly was converted "must be specifically identifiable and be subject to an obligation to be returned or to be otherwise treated in a particular manner" ( McBride v. KPMG Intl. , 135 A.D.3d 576, 580, 24 N.Y.S.3d 257 [1st Dept. 2016] [internal quotation marks omitted] ). In his opposition to the motion, plaintiff admitted that money is "fungible" and "impossible to trace." Moreover, the money that plaintiff seeks is not his, but that of nonparty AIG Life Insurance Company, n/k/a American General Life Insurance Company (AGL).
The first and second causes of action, for fraud and constructive fraud, respectively, were correctly dismissed as free-standing claims. The first cause of action fails adequately to allege scienter and reliance, both of which are essential elements of fraud (see Lama Holding Co. v. Smith Barney , 88 N.Y.2d 413, 421, 646 N.Y.S.2d 76, 668 N.E.2d 1370 [1996] ; Meyercord v. Curry , 38 A.D.3d 315, 316, 832 N.Y.S.2d 29 [1st Dept. 2007] ; Kaufman v. Cohen , 307 A.D.2d 113, 119, 760 N.Y.S.2d 157 [1st Dept. 2003] ). The second cause of action fails to allege a fiduciary relationship (see e.g. Gregor v. Rossi , 120 A.D.3d 447, 448, 992 N.Y.S.2d 17 [1st Dept. 2014] ). While defendant Tremont Partners, Inc.—the general partner of defendant Tremont International Insurance Fund, L.P. (TIIF)—owed a fiduciary duty to the limited partners of TIIF, such as AGL, plaintiff is not a limited partner of TIIF; rather, he has a variable annuity contract with AGL (see SSR II, LLC v. John Hancock Life Ins. Co. [U.S.A.] , 37 Misc.3d 1204(A), 2012 N.Y. Slip Op. 51880(U), 2012 WL 4513354, *1–2, 4, 7–8 [Sup. Ct., N.Y. County 2012] ; see also Lama , 88 N.Y.2d at 424, 646 N.Y.S.2d 76, 668 N.E.2d 1370 ).