- February 5, 2018
Lawrence B. Goldberg, P.C., New York, NY, for appellant.
& Dykman LLP, Garden City, NY (Jocelyn E. Lupetin of
counsel), for respondent.
D. SCHEINKMAN, P.J. JOHN M. LEVENTHAL ROBERT J. MILLER
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to recover damages for unjust enrichment, the
plaintiff appeals from two orders of the Supreme Court,
Nassau County (Vito M. DeStefano, J.), entered March 31,
2015, and February 24, 2016, respectively. The order entered
March 31, 2015, denied the plaintiffs motion for leave to
amend the complaint. The order entered February 24, 2016,
denied the plaintiff s motion for leave to reargue and/or
renew his prior motion and granted the defendant's motion
for summary judgment dismissing the complaint.
that the order entered March 31, 2015, is affirmed; and it is
further, ORDERED that the appeal from so much of the order
entered February 24, 2016, as denied that branch of the
plaintiff s motion which was for leave to reargue is
dismissed, as no appeal lies from an order denying
reargument; and it is further, ORDERED that the order dated
February 24, 2016, is affirmed insofar as reviewed; and it is
further, ORDERED that one bill of costs is awarded to the
Environmental Recycling, Ltd. (hereinafter Emjay), was a
corporation owned 60% by John Kelly and 40% by Michael
Cholowsky. Pursuant to a shareholders' agreement, neither
shareholder could sell his shares without first offering them
to the corporation or to the other shareholder. According to
the plaintiff, Kelly sought to sell his shares of Emjay, and
Cholowsky entered into an oral agreement with the plaintiff
and Tim Fulton, pursuant to which Cholowsky was to acquire
Kelly's shares, and then convey 10% of those shares to
the plaintiff and 40% to Fulton. Allegedly, in exchange for
their shares, the plaintiff and Fulton orally agreed to fund
Cholowsky's purchase of Kelly's shares. Kelly and
Cholowsky then entered into an Agreement of Sale, pursuant to
which Kelly agreed to sell his shares to Cholowsky. The
Agreement of Sale named the plaintiff and Fulton as
guarantors of Cholowsky's obligations thereunder. The
plaintiff alleges that he initially paid Kelly $250, 000 and
later paid Kelly another $500, 000 for the 10% of Emjay
shares he was to receive. According to the plaintiff, Kelly
then "had second thoughts" about the agreement,
returned $275, 000 to the plaintiff, and threatened to
declare the agreement in default. The plaintiff never
received any shares of Emjay or any additional money back.
Cholowsky entered into an agreement with Salvatore Trovato
(hereinafter Trovato), which called for Trovato to pay $2,
650, 000 for 50% of Emjay as well as two other companies
owned by Cholowsky. That deal was consummated and Trovato
became the 50% owner in each of the three companies. Trovato
later passed away and his ownership interest passed to his
estate. The plaintiff commenced this action against
Antoinette Trovato, who was the administrator of
Trovato's estate, seeking a return of the remaining $475,
000 he had paid to Kelly, alleging, inter alia, that Trovato
was unjustly enriched by the plaintiffs payments to Kelly
since Trovato paid less for Emjay as a result of the payments
that the plaintiff had made.
plaintiff moved for leave to amend the complaint to add
Trovato's main business, Trocom Construction Corp., as a
defendant since it was allegedly the alter ago of Trovato and
it provided the money to purchase Emjay. In an order entered
March 31, 2015, the Supreme Court denied the motion, finding
that the proposed amendment was patently devoid of merit, as
there was no alleged relationship between the plaintiff and
Trovato upon which an unjust enrichment cause of action could
be based. The plaintiff appeals from that order.
the plaintiff moved for leave to reargue and/or renew his
prior motion. The defendant moved for summary judgment
dismissing the complaint. In an order entered February 24,
2016, the Supreme Court denied the plaintiff s motion and
granted the defendant's motion. The plaintiff appeals
from the February 24, 2016, order as well.
agree with the Supreme Court's determination to grant the
defendant's motion for summary judgment dismissing the
complaint. To recover for unjust enrichment, a plaintiff must
show that (1) the defendant was enriched, (2) at the
plaintiffs expense, and (3) that it is against equity and
good conscience to permit the defendant to retain what is
sought to be recovered (see Mandarin Trading Ltd. v.
Wildenstein, 16 N.Y.3d 173, 182; J.P. Plumbing Corp.
v. Born to Build Constr. Corp., 137 A.D.3d 976, 977).
"Although privity is not required for an unjust
enrichment claim, a claim will not be supported if the
connection between the parties is too attenuated"
(Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d at
182, citing Sperry v. Crompton Corp., 8 N.Y.3d 204,
215; see J.P. Plumbing Corp. v. Born to Build Constr.
Corp., 137 A.D.3d at 977). The relationship must be one
that could have caused reliance or inducement (see
Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d at 182;
Georgia Malone & Co., Inc. v. Rieder, 86 A.D.3d
406, 408-409, affd 19 N.Y.3d 511). Here, the
defendant established her prima facie entitlement to judgment
as a matter of law by demonstrating that the plaintiff and
Trovato did not have a relationship that could have caused
reliance or inducement on the plaintiffs part. In opposition,
the plaintiff failed to raise a triable issue of fact.
the Supreme Court did not improvidently exercise its
discretion in denying the plaintiffs motion for leave to
amend the complaint. Generally, leave to amend a pleading
should be freely given when there is no significant prejudice
or surprise to the opposing party and where the evidence
submitted in support of the motion indicates that the
proposed amendment may have merit (see CPLR 3025[b];
Edenwald Contr. Co. v. City of New York, 60 N.Y.2d
957, 959; Assevero v. Hamilton & Church Props.,
LLC, 154 A.D.3d 728, 729-730). "[A] party seeking
leave to amend a pleading need not make an evidentiary
showing of merit, and leave to amend will be granted unless
such insufficiency or lack of merit is clear and free from
doubt" (Assevero v. Hamilton & Church Propes.,
LLC, 154 A.D.3d at 729 [internal quotation marks
omitted]; see Stein v. Doukas, 128 A.D.3d 803, 805).
The decision whether to allow an amendment is generally
committed to the court's sound discretion (see
Edenwald Contr. Co. v. City of New York, 60 N.Y.2d
at 959; Assevero v. Hamilton & Church Props.,
LLC, 154 A.D.3d at 730). Here, the proposed amendment to
the complaint was patently devoid of merit, as the plaintiff
did not allege a relationship upon which an unjust enrichment
cause of action could be based.
denial of that branch of the plaintiff s motion which was for
leave to reargue his prior motion is not appealable (see
George v. ...