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Vandashield Ltd v. Isaacson

Supreme Court of New York, First Department

January 17, 2017

Vandashield Ltd, et al., Plaintiffs-Respondents-Appellants,
v.
Mark Isaacson, et al., Defendants-Appellants-Respondents, Anthony Hilton, Nonparty Appellant.

          Law Offices of Paul C. Cavaliere, New York (Paul C. Cavaliere of counsel), for appellant.

          Anthony Hilton, New York, for appellants-respondents.

          Frankfurt Kurnit Klein & Selz, P.C., New York (John B. Harris of counsel), for respondents-appellants.

          Renwick, J.P., Richter, Manzanet-Daniels, Feinman, Kapnick, JJ.

         Appeal from order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered May 20, 2015, which denied defendants' application for an order to show cause, unanimously dismissed, without costs. Order, same court and Justice, entered May 20, 2015, which granted plaintiffs' motion for sanctions, unanimously affirmed, without costs. Order, same court and Justice, entered July 17, 2015, which ruled that defendants had waived their right to serve paper discovery demands, unanimously affirmed, without costs. Order, same court and Justice, entered on or about September 18, 2015, which, to the extent appealed from as limited by the briefs, inter alia, granted defendants' first motion to dismiss (for failure to state a cause of action) so much of the fraud and breach of fiduciary duty claims as were predicated on misrepresentations allegedly made before the assignments by defendant Strategic Development Partners, LLC (SDP), the claims for constructive trust and punitive damages, and all claims against defendant Great Court Capital LLC, and denied the motion as to the remaining portion of the fraud and breach of fiduciary duty claims, the breach of contract claim, and the accounting claim as against SDP, and denied their second motion to dismiss (based on forum non conveniens), unanimously modified, on the law, to deny the first motion as to the request for punitive damages on the fiduciary duty claim, and otherwise affirmed, without costs. Appeal from so much of the September 18, 2015 order as denied vacatur of the orders entered April 3 and May 4, 2015, unanimously dismissed, without costs, as moot.

         With respect to dismissal of the entire action, the motion court considered the factors relevant on a forum non conveniens motion and providently exercised its discretion in ruling that the action should proceed in New York rather than South Africa (see Islamic Republic of Iran v Pahlavi, 62 N.Y.2d 474, 479 [1984], cert denied 469 U.S. 1108');">469 U.S. 1108 [1985]).

         The business judgment rule does not avail defendants since plaintiffs are neither shareholders of a corporation, challenging the decisions of the corporation's directors (see Auerbach v Bennett, 47 N.Y.2d 619, 629 [1979]), nor residents of a cooperative or condominium, challenging the decisions of the board of directors or board of managers (see Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 N.Y.2d 530, 537 [1990]). This case involves, in the first instance, contract interpretation, namely, whether defendant SDP has satisfied the conditions in paragraph 7(a) of the 2012 agreement to require plaintiffs to forbear from suit.

         The court correctly dismissed so much of the fraud claim as dealt with the misrepresentations that defendants allegedly made before plaintiffs entered into their assignment agreements with SDP. "To establish a fraud claim, a plaintiff must demonstrate that a defendant's misrepresentations were the direct and proximate cause of the claimed losses" (Friedman v Anderson, 23 A.D.3d 163, 167 [1st Dept 2005]). "To establish causation, plaintiff must show both that defendant's misrepresentation induced plaintiff to engage in the transaction in question (transaction causation) and that the misrepresentations directly caused the loss about which plaintiff complains (loss causation)" (Laub v Faessel, 297 A.D.2d 28, 31 [1st Dept 2002]).

         Read liberally in plaintiffs' favor, the complaint adequately alleges transaction causation. However, the complaint insufficiently alleges loss causation (see id.). Plaintiffs' losses are not alleged to have been caused by poor security for the loan or defendants' supposed failure to lend money to MOD; rather, the complaint alleges that plaintiffs' losses were caused by defendants' privileging of their own claims in the litigation and settlement with nonparty MOD. Plaintiffs allege, inter alia, that "the Actual Settlement Amount was more than sufficient to repay the Plaintiff Lenders in full, with interest, but Defendants sought to... retain[] more than $12 million for themselves as supposed lost profits because [MOD] failed to pursue the public offering."

         Since plaintiffs submitted no proposed amendment, the court properly denied their request - made in a footnote in their brief - to replead (see Gerrish v State Univ. of N.Y. at Buffalo, 129 A.D.3d 1611, 1613 [4th Dept 2015]).

         Defendants contend that the individual defendants (Mark Isaacson and Ivan Berkowitz) are not subject to liability for fraud and breach of fiduciary duty because they acted on behalf of SDP and there is no basis for piercing SDP's corporate veil. However, the rule on which defendants rely is applicable to contract claims, not tort claims (compare Feigen v Advance Capital Mgt. Corp., 150 A.D.2d 281, 282 [1st Dept 1989], lv dismissed in part, denied in part 74 N.Y.2d 874 [1989], with Fletcher v Dakota, Inc., 99 A.D.3d 43, 49 [1st Dept 2012]). Defendants' contention that the individual defendants did not profit personally is also unavailing (see Pludeman v Northern Leasing Sys., Inc., 10 N.Y.3d 486, 491 [2008]).

         Defendants' claim that plaintiffs failed to plead the contract cause of action with particularity is without merit. There is no requirement of heightened particularity in a contract claim (see East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 A.D.3d 122, 125 [2d Dept 2009], affd 16 N.Y.3d 775');">16 N.Y.3d 775 [2011]; CPLR 3016). Even if, arguendo, it were found that the complaint was not sufficiently particular to give the requisite notice (see CPLR 3013), in opposition to defendants' first motion to dismiss, plaintiffs submitted an affirmation by their counsel describing defendants' failure/refusal to give them full and timely access to information and documents pertaining to MOD's default in making the payments required under the South African settlement (see Rovello v Orofino Realty Co., 40 N.Y.2d 633, 635 [1976]).

         Plaintiffs contend that the constructive trust claim should be reinstated. However, the purpose of a constructive trust is to prevent unjust enrichment (Simonds v Simonds, 45 N.Y.2d 233, 242 [1978]), and plaintiffs do not argue that the motion court erred in dismissing their unjust enrichment claim. Moreover, since constructive trust applies to property already acquired by a defendant (see id. at 241), the motion court correctly dismissed so much of the fourth cause of action as sought to impose a constructive trust over any future funds received by defendants from MOD. In addition, plaintiffs do not allege that defendants will fail to pass along plaintiffs' share of future MOD payments; on the contrary, the documentary evidence indicates that SDP has been fulfilling its obligation to pass plaintiffs' share along.

         In pleading alter ego liability against Great Court, plaintiffs failed to allege facts indicating that defendants abused or perverted the corporate form for the purpose of causing harm to them (see East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 16 N.Y.3d 775');">16 N.Y.3d 775, 776 [2011]). For example, they do not allege that they contracted with SDP because defendants led them to believe that it was the same as the ...


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