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Dragushansky v. Nasser

United States District Court, Second Circuit

August 29, 2013

CARMIT DRAGUSHANSKY, AND HILLA CAPITAL Plaintiffs,
v.
NASSER et al. Defendants.

OPINION

THOMAS P. GRIESA, District Judge.

On December 18, 2012, plaintiffs Carmit Dragushansky and Hilla Capital, Inc. ("Hilla Capital") filed a complaint against Albert Nasser, Rumble Tumble LLC ("Rumble Tumble"), Emertia USA Associates, LLC ("Emerita USA") and Emerita Urban Renewal, LLC (Emerita Urban") (collectively defendants). The complaint alleges breach of contract, unjust enrichment, quantum meruit and violations of New York Labor Law. Defendants filed a motion to dismiss the complaint for failure to state a claim, or in the alternative for a more definite statement.

The court grants the motion to dismiss in part and denies it in part. Specifically, the court dismisses all counts against Rumble Tumble, Emerita USA, and Emerita Urban Renewal. The court also dismisses the claims asserted by Hilla Capital. However, the motion to dismiss is denied and all counts shall remain in the case between Dragushansky and Nasser.

The Complaint

The Parties

The plaintiffs in this case are Dragushansky, an attorney, licensed real estate broker in New York[1], and New York resident, and Hilla Capital, a corporation formed under the laws of New York and operated by Dragushansky. Defendant Nasser is a resident and citizen of Israel who, both individually and through business entities, conducts business and real estate transactions throughout the United States, including in New York. The remaining defendants are limited liability companies formed under the laws of Delaware or New Jersey, and whose President and managing member is Nasser.

Subject Matter Jurisdiction

The complaint alleges that this court has subject matter jurisdiction under 28 U.S.C. ยง 1332 because there is diversity of citizenship between plaintiffs and defendants and the amount in controversy exceeds $75, 000.00.

Factual Allegations

The complaint alleges that in or around August 2011, Nasser asked Dragushansky to work for him. Specifically, Nasser asked Dragushanksy to "provide various legal and business services for [Nasser's] endeavors in the United States, including, but not limited to, brokering and closing real estate deals, managing his real estate portfolio and providing legal advice in furtherance of same." (para 10). Nasser and Dragushansky further agreed that Dragushansky would be paid through Hilla Capital in New York in the following manner: $10, 000 per month as base pay; 1% commission on all real estate transactions Dragushansky brokered; and reimbursement for all expenses and costs she incurred performing her services.

The complaint alleges that Nasser frequently failed to make timely payments and Dragushansky would have to repeatedly ask for her compensation, and in some cases wait several months to be paid. When Dragushanksy received payment, it was through Rumble Tumble or Emerita USA, both companies solely controlled and operated by Nasser.

Despite the delays in receiving her salary, Dragushansky continued to provide legal and real estate services for Nasser. In or around May 2012, Nasser agreed to pay Dragushansky $15, 000 base pay (as opposed to the previously agreed-upon $10, 000) for any month in which she closed a real estate deal.

In October 2012, Dragushansky single-handedly brokered and closed on a $30 million real-estate transaction for Nasser, through Emerita Urban, for a property in Newark, New Jersey. Plaintiffs allege that while Nasser should have paid Dragushanksy $15, 000 in base pay for October, $300, 000 as commission for brokering the deal, and all reasonable expenses she incurred in October, defendants have only paid $5, 000. The complaint also claims that after signing the real estate contract, but before closing on the property, Nasser promised Dragushanksy that she could be the asset manager for the Newark property through Emerita Urban, and would be paid an additional $200, 000 per year for this job. The complaint further alleges that Dragushansky dedicated substantial time and effort in preparing to assume this position. However, after closing on the property, Dragushansky was told that Nasser's son-inlaw was going to be the asset manager instead of her.

Based on these facts, plaintiffs claim that defendants are liable for breaching the contract. Furthermore, plaintiffs allege that defendants failed to comply with provisions of New York Labor Law, requiring proper notices and statements of wages, as well as payment of past due wages, and forbidding unlawful deductions from wages. The complaint also alleges that defendants have been unjustly enriched by withholding Dragushansky's wages. Finally, plaintiffs seek to collect under quantum meriut.

Legal Analysis

Motion to Dismiss Standard

To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must plead sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal , 556 U.S. 662, (2009). In deciding such a motion, a court must accept as true the facts alleged in the complaint, but it should not assume the truth of its legal conclusions. Iqbal , 556 U.S. at 678-79. A court must also draw all reasonable inferences in the plaintiff's favor, and it may consider documents attached to the complaint, incorporated by reference into the complaint, or known to and relied on by the plaintiff in bringing the suit. ATSI Commc'ns, Inc. v. Shaar Fund. Ltd. , 493 F.3d 87, 98 (2d Cir. 2007). A court may also consider documents of which a plaintiff would have had actual notice as he drafted his complaint and which are integral to the claims set forth within it. Cortec Indus., Inc. v. Sum Holding L.P. , 949 F.2d 42, 48 (2d Cir. 1991).

Corporate Defendants

Defendants first argue that the complaint fails to state a claim against Rumble Tumble, Emerita USA, or Emerita Urban (the "corporate defendants") because the complaint only alleges Nasser and Dragushansky reached certain agreements that were violated. Plaintiffs concede that the complaint does not directly allege that the corporate defendants were parties to a contract, yet they argue that the complaint pleads facts from which a reasonable inference can be drawn that the corporate defendants are liable.

"As a general rule, in order for someone to be liable for breach of contract, that person must be a party to the contract." A & V LLC Contr. Co. v. RFD 55th St. LLC , 15 Misc.3d 196, 204 (N.Y. Sup.Ct. Jan. 23, 2007). Although the complaint need not directly allege that the corporate defendants were parties to the contract, the factual allegations in the complaint are insufficient for this court to infer that they were parties. "In order to infer the existence of a contract from the actions of the parties it must appear that they actually intended to form a contract." Estate of Argersinger , 168 A.D.2d 757, 758 (N.Y. 3d A.D. 1990). The party seeking ...


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