Opinion
702533/2015
09-08-2015
Almir Vukel and ERVINA VUKEL, Plaintiffs, v. The Joan Digirolomo Irrevocable Trust, ALFRED DIGIROLOMO, JR., AS A TRUSTEE AND INDIVIDUALLY, JOAN DIGIROLOMO, DIGIROLOMO & ASSOCIATES, P.C., AS THE ESCROW AGENT, JOHN DOE, JANE DOE, and XYZ CORP., Defendants.
The following papers numbered 1 to 12 read on this motion by defendants THE JOAN DIGIROLOMO IRREVOCABLE TRUST, ALFRED DIGIROLOMO, JR., AS A TRUSTEE AND INDIVIDUALLY, JOAN DIGIROLOMO, and DIGIROLOMO & ASSOCIATES, P.C., AS THE ESCROW AGENT for an order dismissing the verified complaint pursuant to CPLR 3211(a)(2) for lack of subject matter jurisdiction, CPLR 3211(a)(7) for failure to state a cause of action upon which relief can be granted, and CPLR 3211(a)(8) for lack of personal jurisdiction for improper, defective or ineffective service of process; and on this cross motion by plaintiffs ALMIR VUKEL and ERVINA VUKEL for an order directing that DiGirolomo & Associates, P.C. and Alfred DiGirolomo, Jr., Esq. be disqualified as attorney for defendants and demanding DiGirolomo & Associates, P.C., as the escrow agent, and Alfred DiGirolomo, Jr., Esq., as an escrow agent, pay the deposit in question into the court pending the outcome of this action.
Papers
Numbered
Notice of Motion - Affidavit - Exhibits........... 1 - 4
Opposition - Exhibits............................. 5 - 6
Notice of Cross Motion - Affidavit - Exhibits..... 7 - 10Reply and Opposition.............................. 11
Reply Affirmation................................. 12
Upon the foregoing papers it is ordered that this motion and cross motion are determined as follows:
This action arises out of the sale and purchase of a cooperative unit known as 160-34 16th Avenue, unit 6-307, Whitestone, New York. Plaintiffs were the purchasers and defendants The Joan DiGirolomo Irrevocable Trust and Joan DiGirolomo were the sellers. On or about November 11, 2014, plainitffs entered into a contract of sale for the premises with The Joan DiGirolomo Irrevocable Trust. On or about December 9, 2014, the contract of sale was amended to replace The Joan DiGirolomo Irrevocable Trust as a seller with defendant Joan DiGirolomo. Pursuant to the contract of sale, plainitffs rendered to defendants DiGirolomo & Associates, P.C. and Alfred DiGirolomo, Jr., Esq. a deposit in the sum of $37,200.00. Thereafter, plainitffs applied to the Board of Directors of the Clearview Gardens Sixth Corporation ("Board"). Plaintiffs were rejected by the Board on or about January 28, 2015.
On February 3, 2015, plaintiffs' counsel, Paul Solomon, Esq., sent a letter to DiGirolomo & Associates, P.C. and Alfred DiGirolomo, Jr., Esq. informing them that plaintiffs were rejected by the Board and requesting that the full deposit be returned. Defendants refused to return the deposit on the ground that plaintiffs breached the contract by failing to fully disclose their finances to the Board.
Plaintiffs commenced this action for breach of contract, conspiracy, conversion, unjust enrichment, and injunctive relief on March 18, 2015 by the filing of a summons and verified complaint.
Defendants now move to dismiss plaintiffs' verified complaint. First, while defendants notice of motion seeks relief for lack of subject matter jurisdiction, defendants fail to provide any argument regarding subject matter jurisdiction. Therefore, defendants' motion to dismiss based on lack of subject matter jurisdiction is denied.
Turning to that branch of defendants' motion to dismiss based on lack of personal jurisdiction, a process server's affidavit constitutes prima facie evidence of proper service of process (see Deutsche Bank Nat. Trust Co. v Pestano, 71 AD3d 1074 [2d Dept. 2010]; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588 [2d Dept. 2009]). Defendants assert that they were improperly served as the papers were given to Germana, a secretary employed by another law firm who shares office space with DiGirolomo & Associates, P.C. Regardless, plainitffs have provided an affidavit of service demonstrating proper service on DiGirolomo & Associates, P.C. pursuant to BCL 306. Accordingly, defendants' motion to dismiss for lack of personal jurisdiction is denied.
On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314 [2002]; Leon v Martinez, 84 NY2d 83[1994]; Greer v National Grid, 89 AD3d 1059 [2d Dept. 2011]; Prestige Caterers, Inc. v Siegel, 88 AD3d 679[2d Dept. 2011]).
A complaint must allege the material elements of the cause of action (see Lewis v Village of Deposit, 40 AD2d 730 [1972]; Kohler v Ford Motor Company, Inc., 93 AD2d 205 [3d Dept. 1983]). Generally, the test of the sufficiency of the complaint is whether it gives sufficient notice of the transaction, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments (see Moore v Johnson, 147 AD2d 621 [1989]; JP Morgan Chase v J.H. Elec. of New York, Inc., 69 AD3d 802[2d Dept. 2010]). However, a court may consider evidentiary material submitted by a defendant in support of a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) (see CPLR 3211[c]; Sokol v Leader, 74 AD3d 1180 [2d Dept. 2010]). When evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one (see Basile v Wiggs, 98 AD3d 640 [2d Dept. 2012]).
The essential elements for pleading a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach (see Dee v Rakower, 112 AD3d 204 [2d Dept. 2013]; Elisa Dreier Reporting Corp. v Global NAPS Networks, Inc., 84 AD3d 122 [2d Dept. 2011]). Here, according plaintiffs the benefit of every possible inference, plaintiffs have established the necessary elements. Accordingly, that branch of defendants' motion to dismiss plaintiffs' breach of contract claim pursuant to CPLR 3211(a)(7) is denied.
To establish a cause of action in conversion, the plaintiff must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendants exercised an unauthorized dominion over the thing in question to the exclusion of the plaintiff's rights (Castaldi v 39 Winfiedl Associates, 30 AD3d 458 [2d Dept. 2006]). The meere right to payment cannot be the basis for a cause of action alleging conversion (see Zendler Const. Co., Inc. v First Adjustment Group, Inc., 59 AD3d 766 [2d Dept. 2009]).
To establish a claim for conspiracy, plainitffs must demonstrate a primary tort and must establish an agreement between two or more people, an overt act in furtherance of the agreement, the parties intentional participation in the furtherance of the plan or purpose, and resulting damages or injury (see Albion Fund v State St. Bank, 2 AD3d 162 [1st Dept. 2005]; Truong v AT & T, 243 AD2d 278 [1st Dept. 1997]; Riverbank Realty Company v Koffman, 179 AD2d 542 [1st Dept. 1992]). Plaintiffs have failed to establish such. Morevoer, the cause of action for conspiracy is not recognized as an independent cause of action and stands or falls with the underlying tort (see Ferrandino & Son, Inc. v Wheaton Bldrs., Inc., LLC, 82 AD3d 1035 [2d Dept. 2011]; Salvatore v Kumar, 45 AD3d 560 [2d Dept. 2006]; Ward v City of New York, 15 AD3d 392 [2d Dept. 2005]). Accordingly, plaintiffs' cause of action for conspiracy is dismissed.
To state a cause of action for unjust enrichment, plainitff must allege a confidential or fiduciary relationship, a promise, a transfer in reliance on that promise, and unjust enrichment (see County of Nassau v Expedia, Inc., 120 AD3d 1178 [2d Dept. 2014]; Hall v McDonald, 115 AD3d 646 [2d Dept. 2014]; Kalmon Dolgin Affiliates, Inc. V Tonacchio, 110 AD3d 848 [2d Dept. 2013]). Unjust enrichment is a quasi-contract claim, and therefore, is not viable where the parties entered into an express agreement (see McMorrow v Angelopoulos, 113 AD3d 736 [2d Dept. 2014]; Woss, LLC v 218 Eckford, LLC, 102 AD3d 860 [2d Dept. 2013]; Vescon Constr., Inc. v Gerelli Ins. Agency, Inc., 97 AD3d 658 [2d Dept. 2012]; Shovak v Long Is. Commercial Bank, 50 AD3d 1118 [2d Dept. 2008]). Therefore, plaintiffs' cause of action for unjust enrichment must be dismissed as it is a quasi-contract claim and the parties entered into an express contract governing the subject of dispute.
Lastly, plainitffs' claim for injunctive relief is dismissed. Pursuant to the terms of the contract, DiGirolomo & Associates, P.C., as escrow agent, is permitted to, in good faith, elect to not return the deposit. As such, plainitffs have failed to allege their entitlement to injunctive relief as they have failed to state what terms of the contract were breached. Moreover, plaintiffs have failed to allege that DiGirolomo & Associates, P.C. did not act in good faith.
Turning to plaintiffs' cross motion to disqualify DiGirolomo & Associates, P.C. and Alfred DiGirolomo, Jr., Esq., this Court initially notes that DR 5-102 has been superseded by Rule 3.7. Plaintiffs contend that Alfred DiGirolomo, Jr., Esq. should be disqualified on the ground that he will likely be a witness. Plaintiffs argue that he is a necessary witness to testify as to why plaintiffs were rejected by the Board.
Defendants oppose the cross motion, contending that plaintiffs failed to explain what testimony of Alfred DiGirolomo, Jr., Esq. is necessary.
"[A] party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted" (Aryeh v Aryeh, 14 AD3d 634 [2d Dept. 2005]). In determining whether to disqualify an attorney on the ground that he will be a witness, the court is guided, but not bound by, the standards set forth in Rule 3.7, and whether to disqualify an attorney rests in the sound discretion of the court (see S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp. 69 NY2d 437 [1987]). A party seeking the disqualification of the attorney bears the burden of the motion (see id. at 445). As this motion for disqualification is based on the lawyer as a witness rule, the moving party must demonstrate that defendants' counsel is likely to testify on a significant issue of fact and that none of the exceptions apply.
On the facts presented here, this Court finds that disqualification of Alfred DiGirolomo, Jr., Esq. is not warranted. Plaintiffs failed to offer proof as to any content or specific subject matter of testimony that might be elicited from Alfred DiGirolomo, Jr., Esq. Even assuming there is relevant testimony to be offered by Alfred DiGirolomo, Jr., Esq., there were other persons present at the time the contract was signed and the Board themselves would be able to offer evidence regarding the content its decision that is in question (see Hudson Valley Marine, Inc. v Town of Cortlandt, 54 AD3d 999 [2d Dept. 2008]).
The remainder of plaintiffs' cross motion is denied. Plaintiffs contend that the funds in dispute may not be secure as they are held by DiGirolomo & Associates, P.C. and Alfred DiGirolomo, Jr., Esq. Plaintiffs fail to present any evidence to support such allegation.
Accordingly, defendants' motion is granted to the extent that plaintiffs' claims for unjust enrichment, conversion, conspiracy, and injunctive relief are dismissed. Plaintiffs' breach of contract claim remains. The cross motion by plaintiffs is denied in its entirety.
Dated: September 8, 2015
Long Island City, NY
_______________________
ROBERT J. MCDONALD
J.S.C.