STANG LLC v. Joel Braver, et al., Defendants. (2018)

Orders, Supreme Court, New York County (Anil C. Singh, J.), entered December 12, 2016, which, to the extent appealed from as limited by the briefs, granted the motions of defendants Fred L. Seeman, Edward J. Bullard, Jr., Bullard Law Group PLLC, Rafi Gibly, Paolo Maldini, Christian Vieri, Andriy Shevchenko, and Zinedine Zidane to dismiss the claims against them, and denied plaintiffs' cross motion for leave to amend their complaint, unanimously affirmed, with costs.

Contrary to plaintiffs' contention, the motion court did not engage in improper issue determination;  rather, it applied the correct standards on a CPLR 3211 motion to dismiss.

The court correctly dismissed the unjust enrichment claims because there is a valid and enforceable operating agreement governing the subject matter of those claims (see Kramer v. Greene, 142 A.D.3d 438, 441, 36 N.Y.S.3d 448 [1st Dept. 2016] ).

Neither the complaint nor the proposed amended complaint contains a breach of fiduciary duty claim against Maldini.  Plaintiffs “may not add a new theory of liability for the first time on appeal” (Davila v. City of New York, 95 A.D.3d 560, 561, 946 N.Y.S.2d 20 [1st Dept. 2012] ).

The breach of fiduciary duty claim was correctly dismissed as against Gibly.  Such a claim must be pleaded with particularity (see CPLR 3016[b] ), and neither the complaint nor the proposed amended complaint describes how Gibly breached his fiduciary duty before his resignation as Managing Member of defendant Hudson Square Hotel, LLC (Hudson Square).  Further, although the complaint alleges that Gibly owed plaintiff Stang LLC a fiduciary duty, Gibly owed no such duty to plaintiffs 489 Southwest Canal St., Inc. and Avihu Gerafi, who were not members of Hudson Square (see Pokoik v. Pokoik, 115 A.D.3d 428, 429, 982 N.Y.S.2d 67 [1st Dept. 2014] ).

Plaintiffs failed to state a claim against the attorney defendants (Seeman, Bullard, and Bullard Law Group) for aiding and abetting Gibly's and Maldini's alleged breaches of fiduciary duty.  The complaint contains no cause of action for aiding and abetting breach of fiduciary duty;  the only aiding and abetting claim is for aiding and abetting fraud.  While the proposed amended complaint contains a cause of action against the attorney defendants for aiding and abetting breach of fiduciary duty, it is for aiding and abetting breaches by other defendants, not Gibly and Maldini.  Again, plaintiffs “may not add a new theory of liability for the first time on appeal” (Davila, 95 A.D.3d at 561, 946 N.Y.S.2d 20).

Given the foregoing, plaintiffs also failed to state a derivative claim on behalf of Hudson Square against the attorney defendants for aiding and abetting Gibly's and Maldini's alleged breaches of fiduciary duty.

We will not consider plaintiffs' contention that they should be allowed to replead, as it is improperly raised for the first time in their reply brief (see e.g. Matter of Erdey v. City of New York, 129 A.D.3d 546, 546–547, 11 N.Y.S.3d 592 [1st Dept. 2015] ).  Moreover, plaintiffs failed to specify or discuss any cause of action with respect to their request (see e.g. Rivera v. Anilesh, 32 A.D.3d 202, 204–205, 820 N.Y.S.2d 223 [1st Dept. 2006], affd 8 N.Y.3d 627, 838 N.Y.S.2d 478, 869 N.E.2d 654 [2007] ).