COTTONE LLC v. SELECTIVE SURFACES INC (2009)

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Parga.J.), entered November 21, 2008, which, in effect, granted that branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7).

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the defendants' motion which were to dismiss the first through fifth causes of action, the seventh through twelfth causes of action, and those portions of the sixth cause of action which are predicated upon waste, mismanagement, and self-dealing, and substituting therefor provisions denying those branches of the motion; as so modified, the order is affirmed, with costs to the plaintiff.

The Supreme Court should not have dismissed the complaint in its entirety pursuant to CPLR 3211(a)(7) upon the ground that it was “conclusory and lacking in specificity to inform defendants of the basic facts upon which a dispute exists.” The plaintiff's 30-page complaint describes the formation, terms, and alleged breach of the oral agreement upon which this dispute is centered, and is sufficiently particular to give the defendants notice “of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action” (CPLR 3013). Moreover, the branch of the defendants' motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7) only set forth particularized arguments as to why four of the 12 causes of action set forth in the complaint failed to state a cause of action. Therefore, the other eight causes of action should not have been dismissed for that reason

With respect to the remaining causes of action, contrary to the defendants' contention, the fourth cause of seeking the imposition of a constructive trust, and the twelfth cause of action seeking an accounting, adequately allege facts demonstrating the existence of a fiduciary duty, which is a necessary element of these claims (see Simonds v. Simonds, 45 N.Y.2d 233, 241-242, 408 N.Y.S.2d 359, 380 N.E.2d 189; Watson v. Pascal, 65 A.D.3d 1333, 886 N.Y.S.2d 440; AHA Sales, Inc. v. Creative Bath Prods., Inc., 58 A.D.3d 6, 23, 867 N.Y.S.2d 169). Accepting the facts alleged in the complaint as true and according the plaintiff the benefit of every possible inference, as we must on a motion to dismiss pursuant to CPLR 3211 (see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17), the plaintiff allegedly became a minority member and owner of the defendant Selective Surfaces, LLC (hereinafter the company), in February 2001, and was thus owed a fiduciary duty by the managing member (see Limited Liability Company Law § 409[a]; Out of Box Promotions, LLC v. Koschitzki, 55 A.D.3d 575, 578, 866 N.Y.S.2d 677; Salm v. Feldstein, 20 A.D.3d 469, 470, 799 N.Y.S.2d 104; Nathanson v. Nathanson, 20 A.D.3d 403, 404, 799 N.Y.S.2d 83).

Furthermore, the unsigned written agreement allegedly drafted by an attorney selected by the company's managing member does not conclusively prove that the plaintiff was not entitled to acquire an ownership interest in the company until the completion of five years of service as its production manager. The variance between the terms of the alleged oral agreement as set forth in the complaint, and the unsigned written agreement, create an issue of fact as to the terms of the oral agreement which cannot be resolved at this juncture. Accordingly, we reject the defendants' argument that the fifth and sixth causes of action, asserting, inter alia, individual and derivative claims of waste, mismanagement, and self-dealing, must fail because these wrongful acts allegedly occurred before the plaintiff's right to acquire an ownership interest in the company matured. However, we agree that the portion of the sixth cause of action which purports to assert a derivative claim on behalf of the company to set aside a fraudulent conveyance of the company's own assets under Debtor and Creditor Law § 276 should be dismissed. Debtor and Creditor Law § 276 provides that “[e]very conveyance made and every obligation incurred with actual intent ․ to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors.” Here the company is the alleged transferor of assets, not a creditor, and thus a fraudulent conveyance claim may not be maintained on its behalf pursuant to Debtor and Creditor Law § 276.

As an alternative basis for affirmance of the order dismissing the complaint in its entirety (see Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545, 470 N.Y.S.2d 564, 458 N.E.2d 1241), the defendants contend that enforcement of the alleged oral agreement is barred by General Obligations Law § 5-701(a)(1). This provision of the statute of frauds requires an agreement to be in writing and subscribed by the party to be charged if such agreement “[b]y its terms is not be performed within one year from the making thereof.” However, General Obligations Law § 5-701(a)(1) has long been interpreted “to encompass only those contracts which, by their terms, ‘have absolutely no possibility in fact and law of full performance within one year’ “ (Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366, 670 N.Y.S.2d 973, 694 N.E.2d 56, quoting D & N Boening v. Kirsch Beverages, 63 N.Y.2d 449, 454, 483 N.Y.S.2d 164, 472 N.E.2d 992). Since the alleged oral agreement at issue is essentially an employment agreement without a fixed duration, it was capable of being performed within one year, and thus not barred by General Obligations Law § 5-701(a)(1) (see Cron v. Hargro Fabrics, 91 N.Y.2d 362, 670 N.Y.S.2d 973, 694 N.E.2d 56; Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 463, 457 N.Y.S.2d 193, 443 N.E.2d 441; Hayden v. P. Zarkadas, P.C., 18 A.D.3d 500, 795 N.Y.S.2d 278; Air Masters v. Bob Mims Heating & A.C. Serv., 300 A.D.2d 513, 752 N.Y.S.2d 388; cf. Cunnison v. Richardson Greenshields Sec., 107 A.D.2d 50, 485 N.Y.S.2d 272).

As a second alternative ground for affirmance, the defendants contend that the plaintiffs' claims are time-barred. On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) upon the ground that it is time-barred, the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see 6D Farm Corp. v. Carr, 63 A.D.3d 903, 905-906, 882 N.Y.S.2d 198; Ciminio v. Dembeck, 61 A.D.3d 802, 803, 876 N.Y.S.2d 893; Swift v. New York Med. Coll., 25 A.D.3d 686, 808 N.Y.S.2d 731; Savarese v. Shatz, 273 A.D.2d 219, 220, 708 N.Y.S.2d 642). In order to sustain this burden, the defendant must establish, inter alia, when the plaintiff's cause of action accrued (see Ciminio v. Dembeck, 61 A.D.3d at 803, 876 N.Y.S.2d 893; Swift v. New York Med. Coll., 25 A.D.3d 686, 808 N.Y.S.2d 731). Construing the facts as alleged in the complaint in the light most favorable to the plaintiff, the defendants failed to establish, prima facie, that the claims governed by six-year limitations periods accrued more than six years prior to the commencement of this action on April 1, 2008 (see Ciminio v. Dembeck, 61 A.D.3d 802, 803, 876 N.Y.S.2d 893; Swift v. New York Med. Coll., 25 A.D.3d 686, 808 N.Y.S.2d 731; Zane v. Minion, 63 A.D.3d 1151, 882 N.Y.S.2d 255). Furthermore, although claims grounded on breach of fiduciary duty are governed by a three-year limitations period when only damages are sought, six-year limitations period applies when equitable relief is requested (see Weiss v. TD Waterhouse, 45 A.D.3d 763, 764, 847 N.Y.S.2d 94; Wiesenthal v. Wiesenthal, 40 A.D.3d 1078, 1079, 838 N.Y.S.2d 581; Klein v. Gutman, 12 A.D.3d 417, 784 N.Y.S.2d 581; Kaufman v. Cohen, 307 A.D.2d 113, 118, 760 N.Y.S.2d 157). Since all of the plaintiff's claims predicated upon the breach of a fiduciary duty seek some form of equitable relief, they are not time-barred.