KING v. Defendants, Isaac Gluck, Respondent. (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiff appeals from (1) an order of the Supreme Court, Rockland County (Sherri L. Eisenpress, J.), dated March 13, 2023, and (2) an order of the same court dated February 22, 2024.  The order dated March 13, 2023, insofar as appealed from, granted the motion of the defendant Isaac Gluck to vacate a notice of pendency and denied that branch of the plaintiff's cross-motion which was for leave to amend the amended complaint to add a cause of action alleging actual fraud under Debtor and Creditor Law former § 276.  The order dated February 22, 2024, granted the motion of the defendant Isaac Gluck for summary judgment dismissing the amended complaint insofar as asserted against him.

ORDERED that the order dated March 13, 2023, is affirmed insofar as appealed from;  and it is further,

ORDERED that the order dated February 22, 2024, is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the defendant Isaac Gluck.

According to the plaintiff, in December 2002, he purchased certain residential property located in New City. In 2018, the property was foreclosed upon, and in 2019, the property was conveyed to the Bank of New York Mellon after a foreclosure sale.  In April 2021, the Bank of New York Mellon sold the property to the defendant Yosef Kohn. During this period of time, the plaintiff and his family continued to reside at the property.

In May 2021, the plaintiff allegedly entered into an agreement with Kohn and his business partner, the defendant Joseph Levy, in which the plaintiff agreed, inter alia, to perform certain renovations on the property in exchange for 50% of the property's sale proceeds minus the amount Kohn paid to purchase the property, as well as the deduction of certain taxes, insurance costs, and legal fees.  The parties agreed to list the property for sale by July 1, 2021, at a price of $1,600,000, and they agreed that the property would not be sold for less than $1,300,000 without the plaintiff's written authorization.  The plaintiff agreed to vacate the property within 31 days after closing.

In November 2021, after the plaintiff showed the property to the defendant Usher Frankel, a real estate broker, and his client, the defendant Isaac Gluck, Gluck made an offer to purchase the property for $1,200,000.  Kohn and Levy allegedly rejected Gluck's offer because it was below the $1,300,000 minimum.  Thereafter, Gluck made a second offer of $950,000, which Kohn and Levy accepted.  Kohn and Gluck entered into a contract of sale for the property in December 2021, and the closing occurred in January 2022.  The plaintiff alleged that he only learned that the property had been sold to Gluck without his authorization after Gluck served him with a 10–day notice to vacate in February 2022.  The plaintiff also alleged that he was not paid his share of the sale proceeds.

In May 2022, the plaintiff commenced this action against the defendants.  The amended complaint asserted causes of action against Kohn and Levy, among other things, to recover damages for breach of contract, breach of fiduciary duty, fraudulent inducement, and fraud.  The amended complaint also asserted a cause of action against all of the defendants to recover damages for civil conspiracy to commit fraud.  In addition to damages, the amended complaint sought to void the conveyance of the property from Kohn to Gluck.  The plaintiff filed a notice of pendency against the property.

Thereafter, Gluck moved to vacate the notice of pendency.  The plaintiff cross-moved, inter alia, for leave to amend the amended complaint to add a cause of action alleging actual fraud under the former version of Debtor and Creditor Law § 276.  In an order dated March 13, 2023, the Supreme Court, among other things, granted Gluck's motion and denied that branch of the plaintiff's cross-motion.  The plaintiff appeals from this order.

Gluck subsequently moved for summary judgment dismissing the amended complaint insofar as asserted against him.  In an order dated February 22, 2024, the Supreme Court granted Gluck's motion.  The plaintiff appeals from this order.

“Prior to December 14, 2023, a notice of pendency could be filed only when the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property” (American Premium Realty Group, LLC v 37–19 Realty, Inc., 243 AD3d 746, 750 [internal quotation marks omitted];  see Whelan v. Busiello, 219 AD3d 778, 779).  “When the court entertains a motion to cancel a notice of pendency in its inherent power to analyze whether the pleading complies with CPLR 6501, it neither assesses the likelihood of success on the merits nor considers material beyond the pleading itself;  the court's analysis is to be limited to the pleading's face” (American Premium Realty Group, LLC v 37–19 Realty, Inc., 243 AD3d at 750–751 [internal quotation marks omitted];  see Mallek v. Felmine, 227 AD3d 977, 978).  “However, in light of the potentially harsh consequences and relative ease of filing a notice of pendency, the courts should apply a narrow interpretation in reviewing whether an action is one affecting the title to, or the possession, use or enjoyment of, real property” (American Premium Realty Group, LLC v 37–19 Realty, Inc., 243 AD3d at 751 [internal quotation marks omitted];  see Whelan v. Busiello, 219 AD3d at 779–780).  Here, the amended complaint, on its face, did not seek relief that would affect the title to, or the possession, use, or enjoyment of, real property (see Mallek v. Felmine, 227 AD3d at 978;  Delidimitropoulos v. Karantinidis, 142 AD3d 1038, 1039;  Homespring, LLC v. Hyung Young Lee, 55 AD3d 541, 542).  Accordingly, the Supreme Court properly granted Gluck's motion to vacate the notice of pendency.

“In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit” (Egelandsdal v. Massaro, 243 AD3d 637, 639 [internal quotation marks omitted];  see CPLR 3025[b];  Fernandez v. Feoktistov, 240 AD3d 575).  “No evidentiary showing of merit is required under CPLR 3025(b)” (Fernandez v. Feoktistov, 240 AD3d at 575 [internal quotation marks omitted];  see First Natl. Bank of Long Is. v Four Keys Realty, LLC, 213 AD3d 639, 641).  “Whether to grant leave to amend is within the trial court's discretion” (First Natl. Bank of Long Is. v. Four Keys Realty, LLC, 213 AD3d at 641 [internal quotation marks omitted];  see Johnson v. Ortiz Transp., LLC, 205 AD3d 696, 697).

Here, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's cross-motion which was for leave to amend the amended complaint to add a cause of action alleging actual fraud under the former version of Debtor and Creditor Law § 276.  That section, which was amended effective April 4, 2020 (see L 2019, ch 580, § 2 [eff Apr. 4, 2020];  Pine Val. Ctr., LLC v. Jacobs, 237 AD3d 1115, 1117;  Kocak v. Dargin, 199 AD3d 456, 457), is not applicable here since the conduct alleged in the proposed second amended complaint occurred after April 4, 2020.

“Pursuant to CPLR 3212(a), courts have considerable discretion to fix a deadline for filing summary judgment motions, so long as the deadline is not earlier than 30 days after filing the note of issue or (unless set by the court) later than 120 days after the filing of the note of issue, except with leave of court on good cause shown” (Gomez v. Tilden Estates, LLC, 241 AD3d 791, 792 [citation and internal quotation marks omitted];  see Brill v. City of New York, 2 NY3d 648, 651).  “ ‘[G]ood cause’ in CPLR 3212(a) requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy” (Brill v. City of New York, 2 NY3d at 652).

Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in considering Gluck's untimely motion for summary judgment dismissing the amended complaint insofar as asserted against him.  Gluck demonstrated good cause for his one-day delay in moving for summary judgment (see Souffrant v M & K Real Estate Assoc., LLC, 225 AD3d 914, 915;  Bik–Lung Lee v. Nassau Health Care Corp., 162 AD3d 628, 630;  Derby v. Bitan, 112 AD3d 881, 882).

On the merits, the Supreme Court properly granted Gluck's motion for summary judgment dismissing the amended complaint insofar as asserted against him.  “New York does not recognize civil conspiracy to commit a tort as an independent cause of action” (Clevenger v. Yuzek, 222 AD3d 931, 936 [internal quotation marks omitted] ).  “However, a plaintiff may plead the existence of a conspiracy in order to connect the actions of the individual defendants with an actionable, underlying tort, and establish that those actions were part of a common scheme” (McSpedon v. Levine, 158 AD3d 618, 621).

Here, the amended complaint failed to adequately allege a fraud cause of action against Gluck, as the allegations that formed the basis of the fraud cause of action were the same as those underlying the breach of contract cause of action against Kohn and Levy. “A cause of action premised upon fraud cannot lie where it is based on the same allegations as a breach of contract claim” (Olden Group, LLC v. 2890 Review Equity, LLC, 209 AD3d 748, 752).  Since the plaintiff failed to adequately allege a fraud cause of action, the plaintiff also failed to state a cause of action alleging civil conspiracy to commit fraud against Gluck, “since it stands or falls with the underlying tort” (McSpedon v. Levine, 158 AD3d at 621;  see Orrego v. Knipfing, 240 AD3d 605, 609;  Whitfield v Law Enforcement Empls.  Benevolent Assn., 237 AD3d 1139, 1141).

The plaintiff's remaining contentions are either without merit or not properly before this Court.

CHAMBERS, J.P., DOWLING, WAN and VENTURA, JJ., concur.