Opinion
2013-11-12
Martin EVANS, as Guardian of the Property of Shari Perl, etc., et al., Plaintiffs–Appellants, v. Stephen H. ROSEN, et al., Defendants, Dean Palin, et al., Defendants–Respondents, Rebecca Perl, etc., et al., Nominal Defendants.
Bressler, Amery & Ross, P.C., New York (David H. Pikus of counsel), for appellants. Law Office of Donovan Wickline, P.C., Brooklyn Heights (Donovan L. Wickline of counsel), for respondents.
Bressler, Amery & Ross, P.C., New York (David H. Pikus of counsel), for appellants. Law Office of Donovan Wickline, P.C., Brooklyn Heights (Donovan L. Wickline of counsel), for respondents.
ANDRIAS, J.P., ACOSTA, SAXE, RENWICK, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered July 11, 2011, which, insofar as appealed from, granted the motion of defendants Dean Palin and 32 West 22nd Street LLC, to dismiss the fourth amended and supplemental complaint as against them, unanimously affirmed, without costs.
In this action alleging, inter alia, the misappropriation of real estate interests by defendant Shallo, the real estate broker for the subject properties, the court properly determined that the facts as pleaded against defendants Palin and 32 West 22nd Street LLC did not state a cause of action against them ( seeCPLR 3211[a][7] ). In the absence of a confidential or fiduciary relationship, plaintiffs have no cause of action for imposition of a constructive trust against them ( cf. Sharp v. Kosmalski, 40 N.Y.2d 119, 121, 386 N.Y.S.2d 72, 351 N.E.2d 721 [1976] ).
As to the claim that Palin aided and abetted Shallo's breach of fiduciary duties when he and Shallo, as members of 32 West 22nd Street LLC, purchased one of the properties, there were no allegations that Palin knowingly participated in the breach or provided “substantial assistance” to Shallo (Kaufman v. Cohen, 307 A.D.2d 113, 124–125, 760 N.Y.S.2d 157 [1st Dept. 2003] ). As the motion court found, at most, the complaint alleges that Palin negotiated the purchase, knew that Shallo was an investor on the buyer side and that Shallo was a broker for the seller ( compare Yuko Ito v. Suzuki, 57 A.D.3d 205, 869 N.Y.S.2d 28 [1st Dept.2008] ).
We have considered plaintiffs' remaining contentions and find them unavailing.