Opinion
INDEX NO. 653567/2018
08-20-2019
PASQUALE SERRONE, Plaintiff, v. SOUTHBRIDGE TOWERS, INC, DEAN ROBERTS, ESQ., NORRIS MCLAUGHLIN & MARCUS, P.A., FRANK CHUNG, MONICA CHUNG, RUSSELL PUTTERMAN, TRISHA PAGLIARO and KELLER WILLIAMS NYC MIDTOWN Defendants.
NYSCEF DOC. NO. 138 PRESENT: HON. FRANCIS A. KAHN , III Acting Justice MOTION DATE N/A MOTION SEQ. NO. 002, 004, 005
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 002) 32-38, 41-45, 60 (Motion 004) 50-59, 83-113, 121 (Motion 005) 66-73, 114-117, 122 were read on these motions to/for DISMISS THE AMENDED COMPLAINT.
This is an action concerning the purported wrongful sale of a cooperative apartment. Plaintiff Pasquale Serrone contends that despite his eviction from co-operative unit 4A located at 100 Beekman Street in Manhattan in 2015, his ownership interest in the Cooperative Company Defendant Southbridge Towers, Inc., ("Southbridge") remains. Plaintiff argues his ownership of his shares in Southbridge was not properly terminated before the unit was sold in 2018 to Defendants Frank and Monica Chung ("Chungs") and that he is entitled to damages constituting the revenue from the sale plus interest. Plaintiff has not pled a cause of action seeking restoration of his ownership interest in the shares sold to the Chungs.
All Defendants in this matter, except Southbridge, move pursuant to CPLR §3211 [a][1] and [7] to dismiss Plaintiff's amended complaint. Moving Defendants are: Dean Roberts, Esq. ("Roberts") and his law firm Norris McLaughlin & Marcus, P.A., ("NMM"), who were attorneys for Defendant Southbridge, Frank and Monica Chung ("Chung") and Russell Putterman ("Putterman") and Trisha Pagliaro ("Pagliaro") of the firm Keller Williams NYC Midtown ("KWNYC"), the real estate brokers who Southbridge engaged to list and sell the subject unit.
By his amended complaint, Plaintiff asserts that on or about October 1, 2014, he purchased a cooperative apartment unit 4A for $20,992.55 as part of a Mitchell-Lama Program. For this purchase, Plaintiff received a lease agreement as well as an original stock certificate identified as Stock Certificate #7293 demonstrating Plaintiff's interest in 19 ½ shares of Class B capital stock in Southbridge allocated to Unit 4A (see NYSCEF Document #29, page 3, paragraph 10). Plaintiff asserts that based upon non-payment of rent pursuant to the lease agreement, Southbridge commenced a proceeding in New York City Civil Court, possession was granted to Southbridge by decision dated July 15, 2015 and Plaintiff was evicted from the unit on October 5, 2015 (see NYSCEF Document #29. Pages 3-4, paragraphs 12-20).
KWNYC, under a brokerage agreement, acted as Southbridge's broker (see NYSCEF Document #29, page 9, paragraph 52). Within the agreement, Southbridge represented to Defendants KWNYC that it owned the subject apartment (see NYSCEF Document #29, page 9, paragraph 54). On or about October 10, 2017, KWNYC listed the unit on behalf of Defendant Southbridge at $499,000.00 and in November 2017, the Chungs entered into a contract of sale for the unit at $489,000.00. NMM represented Southbridge in this transaction (see NYSCEF Document #29, page 4, paragraphs 21-22).
Roberts wrote to Plaintiff by letter dated November 14, 2017 and stated:
"[NMM] is general counsel to Southbridge, the cooperative of which you were a member until your eviction from the above noted apartment. We are reviewing the status of equity refunds and I would asked that you call me so that we may conclude this issue regarding your former apartment" (see NYSCEF Document #29, page 4, paragraph 23 and #93).
On November 29, 2017, Defendant Roberts wrote to Plaintiff again. The letter states:
"As we discussed, enclosed please find a surrender agreement to conclude your post-eviction rights at the cooperative.
Please review the agreement and if satisfactory please sign and have notarized. Once you return the executed original to me we can send the check to you or if you prefer make arrangements for you to pick up the check. As you were evicted, it is not necessary for you to deliver the Stock Certificate to us, but if you have it available it would be appreciated if you could include it with the agreement.
Please let me know if you have any questions and how you would like to handle the final payment"
(see NYSCEF Document #29, pages 4-5, paragraph 24 and #94).
The surrender agreement [states in part]:
Plaintiff "was the shareholder of record for the cooperative apartment 4-A" and who "was evicted and his rights terminated under a Housing Court proceeding..." (see NYSCEF Document #29, page 5; see also NYSCEF Document #94).
The closing for the subject unit occurred between Southbridge and the Chungs on March 1, 2018 (see NYSCEF Document #29, page 6, paragraph 30). As part of this sale, Southbridge issued the Chungs a new stock certificate (see NYSCEF Document #29, page 8, paragraph 43).
Plaintiff asserts six causes of action against Defendants as follows: [1] Fraud against all Defendants except the Chungs, [2] negligence against all Defendants, [3] Unjust Enrichment against all Defendants, [4] Conversion against Southbridge and the Chungs, [5] Escrow Agent Improperly Disbursing Funds against Roberts and NMM and [6] Punitive Damages against all Defendants except the Chungs.
Motions to Dismiss
Defendants KWNYC, Putterman and Pagliaro
KWNYC, Putterman and Pagliaro move to dismiss all of Plaintiff's claims against them for fraud, negligence and unjust enrichment. In support of their motion, these Defendants assert the amended complaint fails to allege any cognizable duty they owed to Plaintiff in order to set forth a negligence claim. Relying upon the Brokerage Agreement entered between Southbridge and KWNYC, Defendants argue that the only duty owed was to Southbridge and that they justifiably relied on Southbridge's representation that they were authorized to sell the subject apartment. As for the fraud cause of action, these Defendants assert the complaint does not identify a misrepresentation made by Defendants so to induce Plaintiff's reliance to his detriment and it otherwise fails to plead a fraud cause of action with particularity as required (see generally CPLR 3016 [b]). Also, these Defendants claim that there is no "close relationship" necessary to establish an unjust enrichment claim since Defendants performed no services for Plaintiff. Further, Plaintiff has not pleaded any commission received by Defendants as a result of the sale was at Plaintiff's expense.
In opposition, Plaintiff claims the motion is premature as no discovery has been exchanged and there are disputed issues of fact. Without elaboration, Plaintiff insists that these Defendants "conspired" with Southbridge, they knew Southbridge did not own the apartment and were required to confirm its ownership. Plaintiff further argues that by participating in the fraudulent sale the commission received constituted unjust enrichment.
Defendants NMM and Roberts
NMM and Roberts move to dismiss the claims of fraud, negligence, unjust enrichment, escrow agent improperly disbursing funds and punitive damage under CPLR §3211[a][1] and [7]. These movants also seek the motion to be treated as one for summary judgment under CPLR §3211[c]. These Defendant argue Plaintiff's fraud claim fails against them since he did not rely on Roberts' correspondences seeking Plaintiff's assent to the surrender agreement terminating his ownership interest in the subject apartment. Moreover, these Defendants claim that Plaintiff failed to plead fraud particularly (see generally CPLR §3016[b]). Likewise, these movants assert Plaintiff's negligence claim fails as Plaintiff did not allege privity as required in a professional negligence claim nor that Defendants engaged in fraud, collusion, malicious acts or special circumstances to obviate the privity requirement. As well, these Defendants posit that as counsel for Southbridge only, they had "no connection" with Plaintiff necessary to sustain a claim of unjust enrichment nor were they enriched at Plaintiff's expense. Similarly, as Plaintiff was not entitled to any of the disbursed funds, Defendants contend Plaintiff's claim of improper disbursement of funds cannot stand. Lastly, Defendants assert that the claim for punitive damages is not a recognized cause of action.
Defendants NMM argue they are entitled to summary judgment because the facts and documents demonstrate that Southbridge participated in the Mitchell-Lama Program that required Plaintiff to surrender the apartment back to Southbridge at the end of his tenancy in exchange for the refund of his equity (see Defendants NMM's affirmation in support, page 6, paragraph 32). However, while there is no issue as to whether Plaintiff surrendered the apartment, there remains an open question as to the amount of "equity" he is entitled to, if any, as Plaintiff has pled and his ownership interest presently remains intact.
In opposition, Plaintiff claims that NMM and Roberts' motion is premature as no discovery has been exchanged and there are disputed issues of fact. Plaintiff argues his ownership interest continued after the building became private and Plaintiff signed an agreement to participate in the new plan for the co-op building. Plaintiff further argues that NMM and Roberts were aware that Plaintiff's ownership interest in the apartment was not extinguished by Plaintiff's eviction and represented Southbridge at the closing that sold the co-operative apartment to the Chungs. Plaintiff further claims KWNYC conspired with the NMM, Roberts and Southbridge in this improper sale such that these Defendants should not profit from this conduct. Moreover, Plaintiff avers NMM and Roberts should not have disbursed the funds held in escrow without an inquiry as to Plaintiff's ownership interest.
Defendants Frank and Monica Chung
The Chungs moved to dismiss the claims of negligence, unjust enrichment, and conversion pursuant to CPLR 3211[a][1] and [7] and for summary judgment pursuant to CPLR 3211[c]. These Defendants assert, based upon documentary evidence, they were unaware of Plaintiff as they conducted diligent searches concerning the subject apartment which revealed Southbridge owned the apartment and disclosed no liens against the premises. As to the negligence claim, the Chungs argue they owed no duty to Plaintiff. Similarly, these Defendants assert that they have no connection with Plaintiff that would sustain an unjust enrichment claim and they were not enriched since fair market value was paid for the disputed premises. On the conversion cause of action, the Chungs argue the claim fails since real property cannot be converted, that its payment to Southbridge cannot be the basis of a conversion claim and that Plaintiff still possesses his shares of stock.
The documents that purport to comprise the Co-op Tile Search identify the premises searched as located at 90 Beekman Street, Apartment/Unit 4A whereas the subject unit is located at 100 Beekman Street (see NYSCEF Document #72, Defendants' Exhibit C).
In opposition, Plaintiff argues the Chungs' motion is premature as no discovery has been exchanged and there are disputed issues of fact. Plaintiff further argues that since "Southbridge and KWNYC conspired to sell [Plaintiff's] Apartment...it precludes Chungs' motion to dismiss from being granted." Plaintiff claims the Chungs knew Southbridge did not have authority to sell the apartment and they were unjustly enriched because the subject apartment was purchased for less than market value. Plaintiff also claims that documents relied on by these Defendants to demonstrate their due diligence are fraudulent and otherwise do not refute Plaintiff's factual allegations.
Discussion
On a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211[a][7], the allegations contained in the complaint must be presumed to be true and liberally construed (Palazzolo v Herrick, Feinstein, LLP, 298 AD2d 372 [2d Dept 2002]; Schulman v Chase Manhattan Bank, 268 AD2d 174 [2d Dept 2000]). In determining such a motion, "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).
In certain situations, however, the presumption falls away when bare legal conclusions and factual claims contained in the complaint are flatly contradicted by evidence submitted by the defendant (see Guggenheimer, supra; Kantrowitz & Goldhamer, P.C. v Geller, 265 AD2d 529 [2d Dept 1999]; Meyer v Guinta, 262 AD2d 463 [2d Dept 1999]). When in the uncommon circumstance the evidence reaches this threshold (see Lawrence v Miller, 11 NY3d 588, 595 [2008]), the court "must determine whether the proponent of the pleading has a cause of action, not whether she has stated one" (Kantrowitz & Goldhamer, P.C. v Geller, supra; see also Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]). Stated differently, "[w]here the facts are not in dispute, the mere iteration of a cause of action is insufficient to sustain a complaint where such facts demonstrate the absence of a viable cause of action" (Allen v Gordon, 86 AD2d 514, 515 [1st Dept 1982]). A motion to dismiss pursuant to CPLR §3211[a][1] may only be granted where "documentary evidence" submitted decisively refutes plaintiff's allegations (AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 590-91 [2005]) or "conclusively establishes a defense to the asserted claims as a matter of law" (Held v Kaufman, 91 NY2d 425, 430-431 [1998]; see also Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]). The scope of evidence that is statutorily "documentary" is exceedingly narrow and "[m]ost evidence" does not qualify (see Higgitt, CPLR 3211[a][1] and [7] Dismissal Motions—Pitfalls and Pointers, 83 New York State Bar Journal 32, 34-35 [2011]).
Fourth, Fifth and Sixth Causes of Action
As to Plaintiff's fourth cause of action against the Chungs, "[a] conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession" (Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 49-50 [2006]). On the face of the complaint, Plaintiff fails to allege any act by the Chungs constituting interreference with Plaintiff's property, to wit his shares in the co-operative. Here, Plaintiff's allegation, in both his complaint and opposition to the motion is that Southbridge, without authority, issued "a new Stock Certificate" to the Chungs. As such, there is no claim that the Chungs converted property belonging to Plaintiff.
Plaintiff's claim that NMM and Roberts as escrow agents "Improperly Disbursed Funds" also fails to state a cause of action. To the extent that Plaintiff's claim can be interpreted as a breach by NMM and Roberts of a fiduciary duty, Plaintiff must set forth in his complaint the duty owed to him (see Burry v Madison Park Owner LLC, 84 AD3d 699, 700 [1st Dept 2011]). As there were no facts pled of a relationship approaching privity between Plaintiff, NMM and Roberts, this cause of action must be dismissed (see Briarpatch Ltd., LP v Frankfurt Garbus et al, 13 AD3d 296 [1st Dept 2004]).
Plaintiff's cause of action for punitive damages fails as no separate cause of action for punitive damages exists New York (see Steinberg v Monasch, 85 AD2d 403 [1st Dept 1982]; see also Bunker v Bunker, 73 AD2d 530 [1st Dept 1979]; Vanguard Equip v CAB Assoc, 288 AD2d 306 [2d Dept 2001]).
First Cause of Action Against KWNYC, Putterman and Pagliano
To assert a cause of action of fraud against KWNYC, Putterman and Pagliaro, Plaintiff was required to set forth in his pleading the prima facie elements of fraud which are: (1) a material misrepresentation of fact, (2) knowledge by the Defendant of its falsity, (3) an intent to induce reliance, (4) justifiable reliance by Plaintiff and (5) damages (see People by Schneiderman v Credit Suisse, 31 NY3d 622, 638 [2018]; Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). Nowhere in Plaintiff's amended complaint does he set forth a material misrepresentation of fact made by KWNYC Putterman or Pagliaro that Plaintiff justifiably relied upon to his detriment (see Solomon Capital, LLC v Lion Biotechnologies, Inc, 171 AD3d 467, 468 [1st Dept 2019]; Mitchell v Diji, 134 AD3d 779 [2d Dept 2015]; Ramos v Ramirez, 31 AD3d 294 [1st Dept 2006]; see also Indymac Bank, F.S.B. v Vincoli, 105 AD3d 704 [2d Dept 2013]; St. Patrick's Home for the Aged & Infirm v Laticrete Int'l, 264 AD2d 652, 659 [1st Dept 1999]). Plaintiff's attempt to excuse the lack of particularity in his pleading upon a claim that certain elements of the fraud may be within Defendant knowledge is unavailing. Here, it is not "impossible to state in detail the circumstances constituting a fraud" (Lanzi v Brooks, 43 NY2d 778, 780 [1977]) since Plaintiff himself must be aware of what was said by these Defendants which he relied upon to his detriment. Accordingly, this cause of action is dismissed.
Second and Third Causes of Action Against KWNYC, Putterman, Pagliano and Chungs
Plaintiff's amended complaint fails to set forth the elements of common-law negligence as against KWNYC, Putterman, Pagliaro or the Chungs. In his pleading, Plaintiff was required to plead (1) a duty owed by Defendants to Plaintiff, (2) a breach of that duty and (3) injury proximately resulting from the duty breach (see CB by Suarez v Howard Security, 158 AD3d 157 [1st Dept 2018] citing Pasternack v Laboratory Corp of Am. Holdings, 27 NY3d 817, 825 [2016]). "In the absence of a duty, as a matter of law, there can be no liability" (Solomon v City of New York, 66 NY2d 1026, 1027 [1985]). The amended complaint fails to identify a duty owed to Plaintiff by any of these Defendants. Plaintiff asserts in his pleading that KWNYC acted as Southbridge's real estate broker (see NYSCEF Document #29, paragraph 52). This relationship was memorialized in a Brokerage Agreement whereby Southbridge represented to KWNYC that it owned the subject apartment. As such, KWNYC's only obligation was to Southbridge (see New York Real Property Law (NYRPL) § 443 et. seq [Regarding disclosure of real estate agency relationship, it details a real estate broker's duties to a seller or landlord and provides "a landlord's agent has, without limitation, the following fiduciary duties to the landlord: reasonable care, undivided loyalty, confidentiality, full disclosure, obedience and duty to account"]; see also Dubbs v Stribling & Assocs., 96 NY2d 337, 340 [2001]["In New York, it is well settled that a real estate broker is a fiduciary with a duty of loyalty and an obligation to act in the best interests of the principal"]). Without Plaintiff identifying a duty owed to him, a claim of negligence is not pled.
The lack of an articulated duty supporting a claim for negligence against the Chungs holds true as well. Plaintiff's amended complaint is silent as to any obligation owed to him by the Chungs. In any event, the Chungs owed no such duty to Plaintiff as a matter of law (see JP Morgan Chase Bank, N.A., v Hall, 122 AD3d 576 [2d Dept 2014] [Pleading failed to allege the existence of a special or privity-like relationship imposing a duty upon parties to verify a valid first lien of real property]). The only conceivable claim levied against the Chungs, that they "failed to perform a cursory due diligence in confirming that the seller of the apartment had the lawful authority and legal right to sell", is adequately contradicted. The Chungs' attorney did perform a co-op title search, albeit for the wrong address, before purchasing the apartment. Regardless of the efficacy of this search, it demonstrated that the Chungs took steps to verify the identity of the owner such that they were not willfully blind to Plaintiff's ownership interest.
Finally, Plaintiff's claim of unjust enrichment is inadequately pled. By his amended complaint, Plaintiff merely states that KWNYC, Putterman and Pagliano "would be unjustly enriched by allowing them to retain their commission" and as to the Chungs, that they "would be unjustly enriched by having purchased said Apartment for less than its fair market value." In order to properly plead unjust enrichment, a claimant must set forth (1) that defendant was enriched, (2) at plaintiff's expense, and (3) that it is against equity and good conscience to permit the Defendant to retain what is sought to be recovered (see Mandarin Trading Ltd, v Wildenstein, 16 NY3d 173, 182 [2011]). As to these Defendants, Plaintiff failed to indicate in the amended complaint, in any way, that these Defendants were enriched at Plaintiff's expense. Moreover, while privity is not a requirement for this cause of action, it cannot be sustained if the pleading makes no showing of a connection between the parties (see Mandarin Trading Ltd. v Wildenstein, supra at 182, citing Sperry v Crompton Corp., 8 NY3d 204, 215 [2007]). Here the amended complaint fails to make such a showing and this cause of action is dismissed as to these Defendants.
First, Second and Third Causes of Action Against NMW and Roberts
Plaintiff's claims of fraud and unjust enrichment against NMM and Roberts fail for the same reasons set forth by the court in its dismissal of the claims against KWNYC, Putterman, Pagliano and Chungs. In the complaint, Plaintiff does not set forth a material misrepresentation of fact made by NMM or Roberts that Plaintiff justifiably relied upon to his detriment (see Solomon Capital, LLC v Lion Biotechnologies, Inc, supra; Mitchell v Diji, supra). While these Defendants did communicate with Plaintiff via the two November 2017 letters sent surrounding Plaintiff's equity and the surrender agreement, Plaintiff indicates in his amended complaint that he did not rely on them to his detriment. Specifically, Plaintiff did not execute the Surrender Agreement nor did he turn over the stock certificate as requested by these Defendants.
Similarly, as stated above, the claim for unjust enrichment is insufficiently pled. In the amended complaint, it reads that NMM and Roberts "would be unjustly enriched by allowing them to retain their legal fees in connection with the fraudulent sale of the Apartment." Construing this claim most liberally, it fails to set forth that these Defendants were enriched at Plaintiff's expense (see Mandarin Trading Ltd. v Wildenstein, supra).
However, Plaintiff properly pled a negligence claim against NMM and Roberts. Generally, claims of professional malpractice against an attorney are barred against those not in privity (see Good Old Days Tavern, Inc., v Zwirn, 259 AD2d 300 [1st Dept 1999]). An exception exists and liability may be extended where a plaintiff sufficiently pleads acts of fraud, collusion, malicious acts or other special circumstances (see Leggiadro, Ltd. v Winston & Strawn, 119 AD3d 442 [1st Dept 2014]).
Here, Plaintiff pled Southbridge did not own the shares the time of the disputed sale and NMM and Roberts acknowledge, they corresponded with Plaintiff by letters dated November 14, 2017 and November 29, 2017 regarding Plaintiff's equity in the subject apartment. The surrender agreement that NMM and Roberts sought Plaintiff to sign, that accompanied the second correspondence, sought to extinguish "any remaining rights" Plaintiff had to the apartment. Despite Plaintiff not executing said surrender agreement NMM and Roberts represented Southbridge in the March 1, 2018 closing for this apartment.
It is inescapable that NMM and Roberts were aware that Southbridge's ownership interest in the co-op shares was potentially fatally flawed and that Plaintiff may have retained an ownership interest. Yet, NMM and Roberts facilitated the consummation of the closing. These actions sufficiently state a claim of collusion, malicious acts or special circumstances for pleading purposes (see A & M Bldg. & Condo Maintenance, Inc. v Atlas Elec. of Staten Is., Inc., 294 AD2d 520 [2d Dept 2002] [Claim against defendant's law firm and lawyer sufficiently pleaded where it was alleged firm committed fraud by submitting order discharging lien without indicating its conditional nature and without satisfying condition]; Green v Fischbein Olivieri Rozenholc & Badillo, 119 AD2d 345 [1st Dept 1986] [Attorney's liability to third-party premised on commencing and prosecuting eviction proceedings without legal basis sufficiently pled fraud, collusion, malicious or tortious act]; see also Hahn v Wylie, 54 AD2d 629 [1st Dept 1976]; New York Cooling Towers, Inc. v Goidel, 10 Misc 3d 219 [Sup Ct, Queens Cty 2005]).
With respect to the proffered documentary evidence, NMM and Roberts argue it demonstrates Southbridge participated in the Mitchell-Lama Program and Plaintiff was required to surrender the disputed apartment to Southbridge at the end of his tenancy in exchange for the refund of his equity, less any charges due plus any capital contributions that were approved (see NYSCEF Document #51, page 4, paragraph20; page 6, paragraph 32). However, in opposition, Plaintiff notes the privatization of the co-op building occurred while Plaintiff still both possessed the apartment and retained an ownership interest (see NYSCEF Document #84, page 2-3, paragraphs 4-7). Indeed, Plaintiff signed an agreement to participate in the privatization of the building (see NYSCEF Document #84, page 2-3, paragraph 7 and #89, Plaintiff's Exhibit D, Schedule A). Thus, Plaintiff's claimed ownership interest is a vital disputed issue that NMM and Roberts's documentation fails to definitively refute and requires denial of this branch of the motion.
Lastly, this Court declines to treat the motions by NMM, Roberts and the Chungs as motions for summary judgment pursuant to CPLR §3211 (c) since the documentary evidence submitted by these parties does not resolve all issues of fact (see Shah v Shah, 215 AD2d 287 [1st Dept 1995] [Defendants' documents attached to motion regarding transfer of real property deemed insufficient warranting the denial of their motion pursuant to CPLR §3211 (c)]).
Accordingly, based on the foregoing, the within motions are granted only to the extent that it is
ORDERED that Plaintiff's fourth, fifth and sixth causes of action for conversion, escrow agent improperly disbursing funds and punitive damages are dismissed; and it is
ORDERED that the amended complaint and any cross-claims as against Defendants KWNYC, Putterman, Pagliano and the Chungs are dismissed; and it is
ORDERED that Plaintiff's first and second causes of action for fraud and unjust enrichment against Defendants NMM and Roberts are dismissed; it is
ORDERED that the branch of Defendant NMM and Roberts's motion to dismiss Plaintiff's second cause of action for negligence is denied.
ORDERED that parties are to appear for a status conference on September 24, 2019, at 9:30 a.m., in IAS Part 14, in Courtroom 1045, located in 111 Centre Street. 8/20/2019
DATE
/s/ _________
FRANCIS A. KAHN, III, A.J.S.C.