Opinion
10206 Index 652899/13
10-29-2019
Abram SABO, Plaintiff–Appellant, v. Alberto CANDERO, et al., Defendants, Capital One Equipment Finance Corp., etc., et al., Defendants–Respondents.
Abram Sabo, appellant pro se. Stein Adler Dabah Zelkowitz LLP, New York (Jonathan L. Adler of counsel), for respondents.
Abram Sabo, appellant pro se.
Stein Adler Dabah Zelkowitz LLP, New York (Jonathan L. Adler of counsel), for respondents.
Richter, J.P., Gische, Tom, Gesmer, Moulton, JJ.
Order, Supreme Court, New York County (Kelly O'Neill Levy, J.), entered November 15, 2018, which granted defendant Capital One Equipment Finance Corp.'s motion to dismiss the amended complaint, and denied plaintiff's motion to hold Capital One in contempt of court, unanimously affirmed, without costs.
The complaint fails to state a cause of action for fraudulent transfer, because no assets were conveyed to Capital One as part of the loan transactions in which Capital One participated; Capital One merely acquired a security interest in the medallions (see Stickler v. Ryan, 270 A.D. 962, 962, 61 N.Y.S.2d 708 [3d Dept. 1946], lv dismissed 296 N.Y. 735, 70 N.E.2d 545 [1946] ; Suk v. Lee, 2009 N.Y. Slip Op. 31368 [U], *19, 2009 WL 1898972 [Sup. Ct., Nassau County 2009] ).
The tortious interference claim was correctly dismissed because, according to the allegations in the complaint, which we accept as true, plaintiff was a judgment creditor seeking to seize a debtor's or transferee's assets for purposes of satisfying the judgment and had no business relations with any of the defendants (see Mehrhof v. Monroe–Woodbury Cent. Sch. Dist., 168 A.D.3d 713, 714, 91 N.Y.S.3d 503 [2d Dept. 2019] ). The complaint also fails to allege that Capital One used any "unlawful means" to secure the liens on the medallions (see Thome v. Alexander & Louisa Calder Found., 70 A.D.3d 88, 108, 890 N.Y.S.2d 16 [1st Dept. 2009], lv denied 15 N.Y.3d 703, 2010 WL 2572017 [2010] ). It does not allege that Capital One engaged in fraud or negligence or any other tortious or criminal conduct. Nor does the complaint allege that Capital One secured the liens for the "sole purpose" of harming plaintiff (see id. ). To the contrary, the complaint alleges that Capital One's purpose was to profit off of the medallions.
The complaint fails to state a cause of action for common-law negligence, because it alleges no facts that could give rise to a duty of care on the part of Capital One towards plaintiff (see Lauer v. City of New York, 95 N.Y.2d 95, 100, 711 N.Y.S.2d 112, 733 N.E.2d 184 [2000] ; Verizon N.Y., Inc. v. Optical Communications Group, Inc., 91 A.D.3d 176, 182, 936 N.Y.S.2d 86 [1st Dept. 2011] ). In the absence of a viable tort claim, there can be no conspiracy claim ( Thome, 70 A.D.3d at 110, 890 N.Y.S.2d 16 ).
Capital One's participation in the loan transactions did not violate either of the two temporary restraining orders of which plaintiff seeks to hold Capital One in contempt.
In the absence of a substantive cause of action, there can be no claim for punitive damages (see Rocanova v Equitable Life Assur. Socy. of U.S., 83 N.Y.2d 603, 616–617, 612 N.Y.S.2d 339, 634 N.E.2d 940 [1994] ).