YUKO ITO LLC v. Nomura Suzuki Properties, Ltd., et al., Defendants. (2008)

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered November 24, 2006, insofar as it dismissed the third, fourth, fifth, sixth and seventh causes of action as against the attorney defendants, unanimously affirmed, without costs.   Order, same court and Justice, entered November 2, 2007, insofar as it denied plaintiff's motion for renewal and for leave to amend the complaint, unanimously modified, on the law, to the extent of granting plaintiff leave to file the proposed fourth amended complaint, and otherwise affirmed, without costs.   Cross appeals from above orders unanimously dismissed, without cost, as abandoned.

Plaintiff, who does not speak English, was induced to make an investment of $1 million to acquire a two-thirds interest in Keystone International LLC and to sign an operation agreement that gave defendant Sam Suzuki permanent managing control of its affairs.   Keystone took title to a property consisting of 41 condominium units owned by an entity controlled by Hiroyoshi Hasegawa.   The transaction was in derogation of “a clear and unequivocal court order” enjoining transfer of the property due to the pendency of divorce proceedings (Hasegawa v. Hasegawa, 281 A.D.2d 594, 595, 722 N.Y.S.2d 177 [2001] ).   Plaintiff brought this action in November 2002, which defendants removed to federal court, requiring amendment of the complaint to conform to federal pleading requirements and, again, to reflect dismissal of RICO claims.   Following remand by the District Court in late 2005, plaintiff filed her third amended complaint, and defendants brought this pre-answer motion to dismiss (CPLR 3211[a][1], [7] ), which Supreme Court granted in relevant part.   Plaintiff then interposed a motion to renew, which also sought amendment of the complaint to reflect a change in the law concerning standing to sue a limited liability company.

 The complaint adequately pleads a cause of action for fraud, alleging that Sam Suzuki used plaintiff's funds to obtain property with a cloud on its title (because of the injunction against transfer and the filing of a lis pendens), for an inflated price and under financing terms onerous to plaintiff.   It further asserts that Suzuki diverted funds from Keystone to satisfy personal obligations, which included payment of a $1.7 million settlement of a fraudulent conveyance claim brought by Hiroyoshi Hasegawa's wife.

The third amended complaint asserts claims of fraud and conspiracy to defraud (third and fourth causes of action) against defendants Daniel Roshco and his firm, Markowitz & Roshco, and Stuart I. Rich, and his firm, Kudman Trachten, LLP (collectively, the attorney defendants).   Rich and his firm are charged with legal malpractice and breach of fiduciary duty (fifth, sixth and seventh causes of action) and, in the proposed fourth amended complaint, with aiding and abetting breach of fiduciary duty.

It is apparent that plaintiff was not individually represented by counsel with respect to either the formation of Keystone or the transfer of the subject property.   Defendant Daniel Roshco represented plaintiff in the sale of her New York condominium apartment to secure funding for her investment in Keystone, obtaining her unlimited power of attorney to permit sale of the premises in her absence.

Both plaintiff and her brother were present when the purchase of the Hasegawa property closed in September 2000.   Although Roshco was not in attendance, he was paid $8,500 out of Keystone funds for work previously performed for the LLC. It was defendant Rich, Suzuki's attorney, who actually provided representation for Keystone at the closing.   The complaint alleges that Rich released escrow funds to Suzuki before the closing was even scheduled whereby, plaintiff asserts, she “lost all leverage to withdraw from the purchase agreement.”

 The complaint alleges that Suzuki, represented by Rich, defrauded plaintiff, who maintains that she was represented by Roshco during that period.   A fair reading of the allegations against the attorney defendants is that they failed to disclose the extent to which the transaction was detrimental to plaintiff.   Lacking, however, is the assertion of any misrepresentation by either Roshco or Rich that was calculated to induce plaintiff's detrimental reliance so as to support a claim of fraud (cf. Houbigant, Inc. v. Deloitte & Touche, 303 A.D.2d 92, 100, 753 N.Y.S.2d 493 [2003] ) and, absent any underlying tort, the conspiracy claim is likewise without foundation (see Jebran v. LaSalle Bus. Credit, LLC, 33 A.D.3d 424, 425, 824 N.Y.S.2d 224 [2006] ).

 A claim for attorney malpractice arises out of the contractual relationship between the parties, whether documented by a retainer agreement or not (Moran v. Hurst, 32 A.D.3d 909, 911, 822 N.Y.S.2d 564 [2006] ).   Absent actual representation by Rich and Kudman Trachten, plaintiff's claims of legal malpractice are untenable as against those defendants (see AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 5 N.Y.3d 582, 595, 808 N.Y.S.2d 573, 842 N.E.2d 471 [2005] ), as is the redundant cause of action for breach of fiduciary duty (see Brooks v. Lewin, 21 A.D.3d 731, 733, 800 N.Y.S.2d 695 [2005], lv. denied 6 N.Y.3d 713, 816 N.Y.S.2d 749, 849 N.E.2d 972 [2006];  Tabner v. Drake, 9 A.D.3d 606, 611, 780 N.Y.S.2d 85 [2004] ).

 Affording plaintiff the benefit of every favorable inference (Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634, 389 N.Y.S.2d 314, 357 N.E.2d 970 [1976] ), we accept as true the complaint's allegations that Rich knew or should have known that the active assistance he provided to Suzuki was harmful to her interests (see Franco v. English, 210 A.D.2d 630, 633, 620 N.Y.S.2d 156 [1994] ).   Rich and Kudman Trachten were engaged by Suzuki to represent Keystone in the purchase of the Hasegawa property, and Suzuki, as Keystone's manager, was charged with a fiduciary duty to plaintiff.   A cause of action for aiding and abetting breach of fiduciary duty merely “requires a prima facie showing of a fiduciary duty owed to plaintiff, ․ a breach of that duty, and defendant's substantial assistance ․ in effecting the breach, together with resulting damages” (Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 A.D.3d 1, 865 N.Y.S.2d 14 [2008];   Kaufman v. Cohen, 307 A.D.2d 113, 125, 760 N.Y.S.2d 157 [2003] ).   Owners of a fractional interest in a common entity are owed a fiduciary duty by its manager (see Caprer v. Nussbaum, 36 A.D.3d 176, 189, 825 N.Y.S.2d 55 [2006] ), and it is now settled that a member of a limited liability company has standing to maintain a derivative action on its behalf (Tzolis v. Wolff, 39 A.D.3d 138, 829 N.Y.S.2d 488 [2007], affd. 10 N.Y.3d 100, 855 N.Y.S.2d 6, 884 N.E.2d 1005 [2008] ).   According the allegations of the complaint their most favorable intendment (Arrington v. New York Times Co., 55 N.Y.2d 433, 442, 449 N.Y.S.2d 941, 434 N.E.2d 1319 [1982], cert. denied 459 U.S. 1146, 103 S.Ct. 787, 74 L.Ed.2d 994 [1983] ), we find that it sufficiently pleads that to the extent Rich and Kudman Trachten knowingly assisted Suzuki to structure the transaction in a manner that was detrimental to plaintiff's interests, they may be held liable for aiding and abetting the breach of Suzuki's fiduciary duty to her as the owner of Keystone's majority interest (Kaufman, 307 A.D.2d at 125, 760 N.Y.S.2d 157).

We find plaintiff's motion to amend the complaint to be timely (CPLR 3025[b];  see Cherebin v. Empress Ambulance Serv., Inc., 43 A.D.3d 364, 365, 841 N.Y.S.2d 277 [2007] ).   As noted, this matter was litigated in federal court until late 2005, defendants interposed this motion to dismiss in February 2006, and plaintiff's capacity to bring derivative claims on behalf of Keystone has only recently been resolved (Tzolis, 10 N.Y.3d at 109, 855 N.Y.S.2d 6, 884 N.E.2d 1005).   Given that the detailed facts concerning the extent of the attorney defendants' involvement in the fraudulent scheme are peculiarly within the knowledge of other parties (see Jered Contr. Corp. v. New York City Tr. Auth., 22 N.Y.2d 187, 194, 292 N.Y.S.2d 98, 239 N.E.2d 197 [1968] ) and the substance of the alleged wrongdoing is set forth in the affidavits of plaintiff and her brother, the circumstances surrounding the proposed cause of action are sufficiently stated to support amendment of the complaint (Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d 352, 354-355, 797 N.Y.S.2d 434 [2005];  cf. Non-Linear Trading Co. v. Braddis Assoc., 243 A.D.2d 107, 116, 675 N.Y.S.2d 5 [1998] ).   Moreover, at this stage of the proceedings, before joinder of issue and discovery, Rich and Kudman Trachten will not sustain prejudice as a result of the amendment (see Stroock & Stroock & Lavan v. Beltramini, 157 A.D.2d 590, 591, 550 N.Y.S.2d 337 [1990] ).

We dismiss the cross appeals as abandoned for failure to raise grounds for affirmative relief in the briefs (see Rivera v. Anilesh, 32 A.D.3d 202, 204-205, 820 N.Y.S.2d 223 [2006], affd. on other grounds 8 N.Y.3d 627, 838 N.Y.S.2d 478, 869 N.E.2d 654 [2007] ).