Opinion
No. 501112/2015.
10-26-2015
LAKE OVERLOOK PARTNERS, LLC, Plaintiff, v. Waltnel SOSA, Defendant.
Laurence J. Lebowitz, Esq., Dealy, Silberstein & Braverman, LLP, New York, Attorney for Plaintiff. Ivan A. Saperstein, Esq., Silverstein & Saperstein, White Plains, Attorney for Defendant.
Laurence J. Lebowitz, Esq., Dealy, Silberstein & Braverman, LLP, New York, Attorney for Plaintiff.
Ivan A. Saperstein, Esq., Silverstein & Saperstein, White Plains, Attorney for Defendant.
CAROLYN E. DEMAREST, J.
In this action by plaintiff Lake Overlook Partners, LLC (plaintiff) against defendant Waltnel Sosa (defendant) seeking a declaration of an equitable interest in real properties, an accounting, and monetary damages based upon unjust enrichment, defendant moves, under motion sequence number one, for an order dismissing each cause of action contained within plaintiff's complaint, pursuant to CPLR 3211(a)(5), based upon the ground that plaintiff has failed to allege the existence of a written contract concerning the real property interests that are the subject of this action in violation of the statute of frauds, and, pursuant to CPLR 3211(a)(7), based upon plaintiff's failure to state a cause of action.
BACKGROUND
Beginning in or about 2006, Schelton Assoumou (Assoumou), who was then working on Wall Street, allegedly observed that certain gentrified areas of Brooklyn were starting to encroach upon and expand into the fringes of less desirable neighborhoods which they bordered. Based upon this observation, Assoumou sought to take advantage of what he perceived would become a growing trend and began purchasing distressed properties in these fringe areas and beyond them. After purchasing such properties, Assoumou would renovate them and either “flip” them or hold onto them for long term appreciation. According to Assoumou, he met with moderate success as a real estate developer until 2008, when the national financial crisis resulted in his inability to fund deals by himself. Assoumou claims that as a result, in order to finance certain transactions, he looked for equity partners and turned to third parties who were willing to provide alternative sources of financing.
Assoumou allegedly met defendant when they were both students at Harvard Business School, and Assoumou had previously assisted Damian Duncan (Duncan), who was another Harvard Business School classmate and his and defendant's mutual acquaintance, in the purchase of two properties. Duncan allegedly suggested to defendant that he contact Assoumou and inform him that he was interested in investing in distressed properties that could either be “flipped” or held for appreciation. Assoumou claims to have acted on Duncan's suggestion and met with defendant, and then outlined a business plan with him, wherein he would use his acumen to identify distressed properties and offer defendant the opportunity to purchase them with him. In 2008, Assoumou and defendant allegedly selected for purchase a property located at 192 Decatur Street (the 192 Decatur Street property) and a property located at 485 Willoughby Avenue (the 485 Willoughby Avenue property), in Brooklyn, New York (collectively, the properties), and allegedly agreed that they would form limited liability companies together for the purpose of transferring ownership of the properties to such limited companies.
With respect to the 192 Decatur Street property, defendant allegedly agreed to an arrangement, whereby Assoumou would hold an 80% interest and he would hold a 20% interest, and with respect to the 485 Willoughby Avenue property, defendant allegedly agreed to an arrangement, whereby Assoumou would hold a 65% interest and he would hold a 20% interest. In anticipation of creating the limited liability companies which were to hold title to the properties, defendant spoke with Sarah Twigg, Esq., the general counsel of Assoumou's real estate company, who prepared the paperwork necessary to form these limited liability companies. However, although presented with this paperwork, defendant delayed in executing the necessary documents for the formation of the limited liability companies and ultimately never executed them.
The sale of the 192 Decatur Street property closed in January 2009, and the sale of the 485 Willoughby Avenue property closed in February 2009, with defendant taking title to the properties solely in his own name. Assoumou claims that such transfers of title to defendant were with the understanding that he would later transfer the properties to the limited liability companies to be formed. Assoumou claims to have contributed in excess of $100,000 towards the purchase price, mortgage payments, and renovations of the 192 Decatur Street property, and in excess of $200,000 towards the purchase price, mortgage payments, and renovations of the 485 Willoughby Avenue property. According to Assoumou, defendant was to contribute up to a total of $100,000 to reflect his share of ownership in the properties, and, in April 2009, defendant wired $25,000 to Assoumou's business account. Subsequent to the closings of the properties, Assoumou had his attorney, Ms. Twigg, revise and resend the documents necessary for the formation of the limited liability companies to defendant. However, notwithstanding Assoumou's demand that defendant execute these documents, defendant has continuously refused to do so. It is alleged that since the time that defendant took possession of the properties, he has leased apartments therein and collected rents, and that the properties have also increased substantially in value.
Significantly, with respect to the loan transactions involving the properties (as well as other properties not at issue here), Assoumou, on October 17, 2013, pleaded guilty to one count of wire fraud in violation of 18 USC § 1343 and § 1439 in federal court (United States of America v. Assoumou, Docket No. 1:13 CR 00491–001 [ED N.Y.2013], Gleeson, J.) (the criminal action). In the criminal action, the government alleged that Assoumou had solicited friends and colleagues, including defendant, to act as “straw men” in the purchase of properties, including the 192 Decatur Street property and the 485 Willoughby Avenue property, which he then would manage and operate, and that Assoumou was the mastermind behind a mortgage fraud in which Assoumou assisted his schoolmates and friends in completing mortgage applications which falsely stated that they would be “owner-occupiers” of the properties, rather than investors. Under this fraud scheme, mortgages for these properties were obtained in excess of the properties' values, and Assoumou had no liability for the mortgages. The purchasers/mortgagors of the properties would then default on the loans, and the mortgagees suffered losses.
At page 15 of Assoumou's “Objections to Pre–Sentence Report Submitted Pursuant to Rule 32(F) of the Federal Rules of Criminal Procedure ” (the Objections), filed on September 15, 2014 by Assoumou's attorney in the federal criminal action against him, Assoumou discussed the 485 Willoughby Avenue property and the 192 Decatur Street property and defendant. Specifically, Assoumou admitted that he had helped defendant obtain the mortgages on the properties by submitting applications which contained false information, and that the deeds to the properties were in defendant's name. Assoumou further described the arrangement whereby defendant was to contribute $100,000 to working capital for the renovation of the properties and removal of the tenants, while he would manage the properties for a fee, and when they were sold, would share in the profit with defendant. Assoumou explained that defendant, after contributing only $25,000, was laid off from his job as a senior investment banker at Credit Suisse, and could not meet his commitment. Assoumou claimed to have contributed his own funds for renovations, and stated that defendant was able to obtain a loan modification for the 485 Willoughby Avenue property at a cost of $910, charged to Assoumou. Assoumou also set forth that the amount of the original mortgage on the 192 Decatur Street property was $516,000.
Significantly, Assoumou, in the Objections, admitted that “the arrangement generally was that he would get paid a reasonable fee for renovating the property, removing deadbeat tenants and thereafter acting as property manager,” and that “[u]ltimately, [he] did not keep ownership of any of these properties.” He further stated that although he “contributed the majority of the capital required to renovate and improve the properties as well as to cover any mortgage payment shortfalls, by virtue of the fact that he did not own the properties, he did not ultimately control whether the owner would abandon a property if it turned out to be non-performing.”
While Assoumou asserted, in the Objections and in his affidavit in the instant action, that the properties became profitable and actually increased in value, Assoumou concedes, in his affidavit, that defendant never executed the documents necessary for the formation of the limited liability companies or the transfer of title to the properties to him. By virtue of an assignment dated November 7, 2014, Assoumou assigned to plaintiff, a limited liability company, all of his rights and interests in any claims he had or has against defendant related to the properties.
On January 30, 2015, plaintiff filed a summons with notice in this action, and on April 24, 2014, defendant filed a notice of appearance and a demand for the complaint. On April 30, 2015, plaintiff filed its complaint, which contains six cause of actions, the first, second, and third of which relate to the 192 Decatur Street property, and the fourth, fifth, and sixth of which relate to the 485 Willoughby Avenue property.
Plaintiff's first cause of action for an equitable interest in the 192 Decatur Street property alleges that defendant had agreed to take ownership of this property and then transfer it to a limited liability company to be formed which would reflect that Assoumou owned 80% of the limited liability company and that defendant owned 20% of the limited liability company. It further alleges that defendant knew that Assoumou was making a substantial contribution based solely upon this understanding and that defendant never intended to transfer title of the 192 Decatur Street property and fraudulently induced Assoumou to contribute funds for the 192 Decatur Street property's purchase and renovation. It asserts that defendant has benefitted both by receiving income from the 192 Decatur Street property as well as the appreciation of the 192 Decatur Street property, that Assoumou was damaged and plaintiff, as Assoumou's assignee, is entitled to a judgment that it has an 80% interest in the 192 Decatur Street property. Plaintiff's second cause of action for an accounting alleges between January 2009 and the present, defendant has collected rents for apartments at the 192 Decatur Street property and/or the entire property. It seeks an accounting of the rents and profits and a judgment based upon such accounting. Plaintiff's third cause of action alleges that Assoumou conferred a benefit upon defendant by contributing the down payment for the 192 Decatur Street property, as well as significant sums for its renovations, and that defendant was aware of the financial contributions being made by Assoumou and accepted the benefit of those contributions. Specifically, it alleges that Assoumou's contributions allowed defendant to acquire ownership, service the mortgage, and renovate the 192 Decatur Street property. It asserts that by reason of Assoumou's financial contributions, defendant has benefitted by collecting rents and having the 192 Decatur Street property appreciate in value, and that defendant has thereby been unjustly enriched. It seeks damages of not less than $1,000,000.
Plaintiff's fourth cause of action for an equitable interest in the 485 Willoughby Avenue property alleges that defendant had agreed to take ownership of this property and then transfer it to a limited liability company to be formed which would reflect that Assoumou owned 65% of the limited liability company and that defendant owned 35% of the limited liability company. It further alleges that defendant knew that Assoumou was making a substantial contribution based solely upon this understanding and that defendant never intended to transfer title of the 485 Willoughby Avenue property and fraudulently induced Assoumou to contribute funds for the 485 Willoughby Avenue property's purchase and renovation. It asserts that defendant has benefitted both by receiving income from the 485 Willoughby Avenue property as well as the appreciation of the property, that Assoumou was damaged and plaintiff, as Assoumou's assignee, is entitled to a judgment that it has an 65% interest in the 485 Willoughby Avenue property. Plaintiff's fifth cause of action for an accounting alleges that between February 2009 and the present, defendant has collected rents for apartments at the 485 Willoughby Avenue property and/or the entire property. It seeks an accounting of the rents and profits and a judgment based upon such accounting. Plaintiff's sixth cause of action alleges that Assoumou conferred a benefit upon defendant by contributing the down payment for the 485 Willoughby Avenue property, as well as significant sums for its renovations, and that defendant was aware of the financial contributions being made by Assoumou and accepted the benefit of those contributions. Specifically, it alleges that Assoumou's contributions allowed defendant to acquire ownership of the 485 Willoughby Avenue property and renovate it. It asserts that by reason of Assoumou's financial contributions, defendant has benefitted by collecting rents and by the appreciation in value of the 485 Willoughby Avenue property, and that defendant has thereby been unjustly enriched. It seeks damages of not less than $1,000,000.
On June 5, 2015, defendant filed the instant motion to dismiss plaintiff's complaint. Defendant asserts that plaintiff's complaint is barred by the statute of frauds and fails to state a viable cause of action. Plaintiff opposes defendant's motion.
DISCUSSION
In support of his motion, defendant has submitted his sworn affidavit, in which he asserts that he is the sole owner of the properties. He attests that at no time, has he ever had a written agreement with Assoumou or plaintiff of any nature whatsoever regarding the properties.
Pursuant to CPLR 3211(a)(5), dismissal is required where the causes of action of a complaint may not be maintained because of the statute of frauds. General Obligations Law § 5–703(a)(1) provides that “[a]n estate or interest in real property, other than a lease for a term not exceeding one year, or any trust or power, over or concerning real property, or in any manner relating thereto, cannot be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his [or her] lawful agent, thereunto authorized by writing.” General Obligations Law § 5–703(a)(2) further provides that “[a] contract for the leasing for a longer period than one year, or for the sale, of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his [or her] lawful agent thereunto authorized by writing.”
Plaintiff's first and fourth causes of action, while framed as claims to recover an equitable interest in the properties, are, in essence, claims for breach of contract, which fall within the statute of frauds. Plaintiff's complaint, however, fails to allege that there was any written agreement, signed by defendant, between it and Assoumou or plaintiff relating to the properties. Plaintiff merely states, in paragraphs 17 and 18 of its complaint, that defendant and Assoumou “agreed to an arrangement,” whereby Assoumou would hold a 80% interest in the 192 Decatur Street property and defendant would hold a 20% interest in that property, and Assoumou would hold a 65% interest in the 485 Willoughby Avenue property and defendant would hold a 35% interest in that property. Such an alleged oral “arrangement” is insufficient to satisfy the statute of frauds. Indeed, plaintiff admits that no written agreement was ever executed by defendant in paragraph 27 of its complaint, wherein it alleges that defendant “did not execute the documents necessary for the formation of the limited liability companies or [to] transfer title to the [p]roperties.”
Plaintiff, in opposition, however, argues that the statute of frauds has been satisfied and that a valid contract was formed. It relies upon a series of e-mails annexed to its opposition papers as exhibits. In this regard, General Obligations Law § 5–701(b)(4) provides that “the tangible written text produced by [an e-mail] ... shall constitute a writing and any symbol executed or adopted by a party with the present intention to authenticate a writing shall constitute a signing.”
However, in order “[t]o satisfy the statute of frauds, a memorandum, subscribed by the party to be charged, must designate the parties, identify and describe the subject matter, and state all of the essential terms of a complete agreement” (Dahan v. Weiss, 120 AD3d 540, 541 [2d Dept 2014] ; see also TR–One, Inc. v.. Lazz Dev. Co., Inc., 95 AD3d 1303, 1303–1304 [2d Dept 2012] ; Nesbitt v. Penalver, 40 AD3d 596, 597 [2d Dept 2007] ; Cohen v. Swenson, 140 A.D.2d 407, 407 [2d Dept 1988] ; Schuman v. Strauss, 139 A.D.2d 502, 503 [2d Dept 1988], appeal denied 72 N.Y.2d 804 [1988] ). “A writing is not a sufficient memorandum unless the full intention of the parties can be ascertained from it alone [,] without recourse to parol evidence' “ (Dahan, 120 AD3d at 542, quoting Cooley v. Lobdell, 153 N.Y. 596, 600 [1897] ; see also Conway v. Maher, 185 A.D.2d 570, 572 [3d Dept 1992] ).
It is true that “the statutorily required writing need not be contained in one single document, but rather may be furnished by piecing together other, related writings' “ (William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 NY3d 470, 477 [2013], quoting Henry L. Fox Co. v. Kaufman Org., 74 N.Y.2d 136, 140 [1989] ). Plaintiff contends that, taken together, the submitted e-mails are sufficient to satisfy the statute of frauds.
Assoumou asserts that exhibit A, which is an e-mail dated January 2, 2009 from defendant to himself, confirms that defendant reviewed all of the closing documents for the 192 Decatur Street property, and asked follow-up questions regarding the transaction. This e-mail, however, does not show that any agreement was reached by defendant to transfer title of the 192 Decatur Street property to a limited liability company. Rather, defendant merely stated, in this e-mail, that the contract amount for the 192 Decatur Street property was $600,000, that the loan received was $516,000, which was roughly 85% of the contracted price, and questioned the closing costs and settlement statement, puzzling over the failure to account for a difference of $84,000 between what was due seller and what was purportedly paid to seller.
Exhibit B, entitled “Willoughby's Property Summary,” dated January 30, 2009, was sent by Assoumou to defendant, and projects financing for the 485 Willoughby Avenue property, comparing profits with defendant having 100% ownership, 10% ownership, 30% ownership, and 50% ownership. This spreadsheet was not created or executed by defendant, and does not evidence any agreement reached between defendant and Assoumou giving Assoumou any ownership interest in 485 Willoughby Avenue. Notably, as discussed above, Assoumou, in the Objections, conceded that, with respect to his dealings with defendant, he did not obtain an ownership interest in the properties.
Exhibit C, entitled defendant's “Customized Portfolio Summary”, is dated December 31, 2008, and was sent by an e-mail from Eve Liu, Assoumou's assistant, to defendant on January 30, 2009. It lists financing for the 192 Decatur Street property and projected “Cumulative Profit” with defendant having 100% ownership, 10% ownership, 50% ownership, and 25% ownership. This spreadsheet was also not created or executed by defendant, and does not evidence any agreement reached between defendant and Assoumou.
Exhibit D is an e-mail dated February 1, 2009 from defendant to Assoumou, in which defendant stated that he was still thinking through the amount that he would be willing to put down on the properties, and requested an analysis with respect to seller financing with his ownership at 10%, 50%, 76%, and 100% in order to “get a good sense of the profiles of each of the properties” based upon loan sizes and financing terms. This e-mail evidences continued evaluation by defendant but is not conclusive of an agreement, and does not indicate that defendant agreed to give Assoumou any ownership interest in the properties.
Exhibit E consists of e-mails dated March 12, 2009 and March 13, 2009 from the project managers at the 485 Willoughby Avenue property to Assoumou regarding payments that were due to contractors working on the site. While these e-mails reflect payments requested from Assoumou, they do not evidence any agreement by defendant to give Assoumou an ownership interest in the 485 Willoughby Avenue property or otherwise.
Exhibit F is a Citibank statement for Assoumou's real estate firm, Brooklyn Renaissance Development, for the March 17 to April 15, 2009 statement period, which shows that defendant made a wire transfer to that account in the amount of $25,001. While this evidences that there was a payment made by defendant, such payment is not unequivocally referable to an agreement to transfer any ownership interest in the properties to Assoumou. Assoumou also asserts that this exhibit shows that a wire transfer was made by a third party investor, Anne–Marie Walter, on March 13, 2009, that the March 2009 mortgage payment for this property was paid, and that checks No.1385, # 1388, and # 1389 were written to contractors and deposited the next business day. Pages 2 and 4 through 18 of this 18–page statement were not e-filed or otherwise provided to the court and neither the statement that was e-filed nor that provided by hard copy contains that information. In any event, this would be insufficient to show the existence of a written agreement executed by defendant.
Exhibit G is identical to exhibit D. Exhibit H is an e-mail, dated March 11, 2009, from Eve Liu to defendant, which attached a property acquisition analysis for each of the properties, i.e., a “485 Willoughby Ave. Property Summary,” which listed financing with defendant's ownership interest at 100%, 50%, 35%, and 20%, and the “Customized Portfolio Summary,” dated December 31, 2008, which was also included as plaintiff's exhibit C. This e-mail, however, was not sent or executed by defendant, and relates to financing, and does not relate to any ownership interest in the properties by Assoumou.
Assoumou asserts that exhibit I is an e-mail from defendant to him, confirming that he would reduce his equity investment on both properties to only $25,001, and that he agreed to pay $25,000 for 25% equity in the 485 Willoughby Avenue property and $1.00 for 20% equity in the 192 Decatur Street property. Exhibit I, however, does not state this. Rather, exhibit I is an e-mail sent to Assoumou by defendant on April 9, 2009, in response to an April 8, 2009 e-mail by Assoumou. In the April 8, 2009 e-mail, Assoumou stated that his attorney had been working on a version of documents that would work for most of his partnerships, “but [he would] ask her to send [defendant] a draft in short order.” Assoumou further stated he also needed funds to keep the 485 Willoughby Avenue renovation project going, and requested a wire transfer of funds. Defendant, in the April 9, 2009 e-mail, responded: “Yes, I will send the money. I would like to get a sense of the partnership agreements first though.” Thus, this e-mail does not show that defendant agreed to the terms of a partnership agreement, nor does it show the existence of any agreement regarding defendant or Assoumou's equity interests in the properties.
Exhibit J consists of a series of e-mails dated April 10 through April 14, 2009, evidencing negotiations between defendant and Assoumou's attorney, Ms. Twigg. The April 10, 2009 e-mail from defendant asked Ms. Twigg to include something in the term sheet that speaks about “an option to buy out post 12 months,” and also discusses other terms. Ms. Twigg responded that she would send defendant a revised term sheet, reflecting the requested changes. An April 13, 2009 e-mail from Ms. Twigg enclosed a revised term sheet to reflect their correspondence on April 10, 2009, and asked that defendant let her know if he had any further comments or if defendant was comfortable with the proposed terms, and, if so, she promised to “prepare an execution version of the agreement.” Defendant, in an April 14, 2009 e-mail, responded that he “took a look,” and was “fine with it.” Again, the exchange fails to establish a firm agreement giving Assoumou any equity interest in the properties but merely indicates an intention to reduce an agreement to writing.
Exhibit K is entitled “ASK CAPITAL JOINT PORTFOLIO OWNERSHIP–TERM SHEET.” This term sheet states that its purpose was to establish the terms upon which Assoumou, as the “equity investor,” and defendant, as the “investor,” would create an investment relationship pursuant to which they would purchase and jointly hold the 485 Willoughby Avenue property, which is designated as the “portfolio.” It states that “[d]espite the fact the Portfolio is registered in the Investor's name, and the specific dollar contributions of the Parties at closing, the parties intend their respective ownership interests immediately post closing to be: Equity Investor 65% [and] Investor 35%.” It further states that “[t]he Parties will form a New York Limited Liability Company under the name ACAP Properties No.9, LLC ... and shall each transfer their respective interests in the Portfolio to [the] LLC,” and that “[u]pon the completion of such transfer the LLC shall become the registered owner of the Portfolio.” Plaintiff contends that exhibit K contains all of the essential terms of the agreement, and that defendant agreed to these terms via e-mail. Plaintiff, however, has annexed only the first two pages of this three-page document, which contain no signatures. The third page of this document (which has been submitted by defendant) is signed by Assoumou, but there is no signature by defendant on the line designated for him to sign, and defendant attests that he never signed it. It also contains blank spaces concerning the amount to be paid as a management fee to Brooklyn Renaissance Development (which, as noted above, is Assoumou's real estate firm) to manage the portfolio. Thus, contrary to plaintiff and Assoumou's contentions, this document (which only relates to the 485 Willoughby Avenue property and not to the 192 Decatur Street property), is insufficient to satisfy the statute of frauds since it was never executed by defendant and left terms blank and open to further negotiation.
Exhibit L is the same April 14, 2009 e-mail by defendant that was included in exhibit J, in which defendant responded that he “took a look,” and was “fine with it,” in response to Ms. Twigg's e-mail asking if defendant had any further comments or if he was comfortable with the proposed terms so that she could then “prepare an execution version of the agreement.” As previously noted, the final version of the agreement was never executed by defendant.
Exhibit M is the same as exhibit F, and shows that defendant wired $25,001 to Brooklyn Renaissance Development's Citibank account on April 14, 2009. Significantly, this wire transfer was made after defendant had already obtained title to the properties in January and February 2009; the reason for this transfer cannot, therefore, be determined.
Thus, all of the e-mails and submissions, at best, show that there were merely negotiations for an agreement (see Dahan, 120 AD3d at 542 ). Indeed, the e-mails submitted by plaintiff conclusively establish that defendant and Assoumou intended to finalize their agreement in a signed writing, which never materialized, inasmuch as negotiations had been ongoing and were eventually discontinued by defendant (see Schutty v. Speiser Krause P.C., 86 AD3d 484, 485 [1st Dept 2011] ; Langer v. Dadabhoy, 44 AD3d 425, 426 [1st Dept 2007], lv denied 10 NY3d 712 [2008] ). As such, there was no mutual assent or meeting of the minds as to any proposed agreement or joint venture (see Langer, 44 AD3d at 426 ; May v. Wilcox, 182 A.D.2d 939, 940 [3d Dept 1992] ).
Moreover, there is no question that the alleged oral agreement to convey an interest in the properties to Assoumou through membership in an LLC not yet formed falls within the statute of frauds since defendant was to initially purchase and take title to the properties in his name and only thereafter transfer title to the limited liability companies to be formed. Without a writing, such agreement is unenforceable (see Chanler v. Roberts, 200 A.D.2d 489, 490 [1st Dept 1994], lv dismissed 84 N.Y.2d 903 [1994] ). Furthermore, no binding agreement as to the creation of a joint venture with respect to the properties, by which limited liability companies were to hold title, could have been created since no limited liability companies were ever formed and defendant refused to execute any written agreement (see Solutia Inc. v. FMC Corp., 456 F Supp 2d 429 [SD N.Y.2006] ).
Thus, inasmuch as the e-mails, pieced together, fail to state all of the essential terms of a complete agreement to which defendant assented, plaintiff cannot satisfy the statute of frauds. Consequently, plaintiff's first and fourth causes of action to recover an equitable interest in the properties must fail as a matter of law as barred by the statute of frauds (see CPLR 3211 [a] [5] ).
Plaintiff's second and fifth causes of action for an accounting seek an accounting of the rents and profits from the properties. “The right to an accounting is premised upon the existence of a confidential or fiduciary relationship and a breach of the duty imposed by that relationship respecting property in which the party seeking the accounting has an interest' “ (Center for Rehabilitation & Nursing at Birchwood, LLC v. S & L Birchwood, LLC, 92 AD3d 711, 713 [2d Dept 2012], quoting Palazzo v. Palazzo, 121 A.D.2d 261, 265 [2d Dept 1986] ). In the absence of a confidential or fiduciary relationship, a plaintiff has no viable cause of action for an accounting (see Saunders v. AOL Time Warner, Inc., 18 AD3d 216, 217 [1st Dept 2005] ). Thus, the failure to allege a fiduciary relationship is fatal to a demand for an accounting (see Simons v. Ross, 309 A.D.2d 667, 667 [1st Dept 2003] ).
Here, plaintiff does not allege the existence of a fiduciary relationship between itself and defendant or Assoumou. Plaintiff's claim for an accounting is based upon an assignment of interest in the properties from Assoumou, and, as discussed above, Assoumou has no interest in them since any such claim is barred by the statute of frauds. As the alleged agreement falls within the statute of frauds, it may not be used in support of plaintiff's causes of action for an accounting (see Leslie v. Frank, 276 A.D.2d 257, 257 [1st Dept 2000] ). Thus, plaintiff's second and fifth causes of action must be dismissed (see CPLR 3211[a][5], [7] ).
As to plaintiff's third and sixth causes of action for unjust enrichment, it is well established that “[t]o state a cause of action to recover damages for unjust enrichment, a plaintiff must allege that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered” (AHA Sales, Inc. v. Creative Bath Prods., Inc., 58 AD3d 6, 19 [2d Dept 2008] [internal quotation marks omitted] ). However, where a plaintiff has unclean hands, its claims for unjust enrichment are barred (see Board of Mgrs. of Marbury Club Condominium v. Marbury Corners, LLC, 119 AD3d 830, 830–831 [2d Dept 2014], lv denied 25 NY3d 901 [2015] ; 1133 Taconic, LLC v. Lartrym Servs., Inc., 85 AD3d 992, 993 [2d Dept 2011] ).
Here, plaintiff's instant claims were assigned to it by Assoumou, who pleaded guilty to charges of wire fraud in federal court related to the properties. Specifically, Assoumou was charged with using his friends and colleagues, including defendant, to act as “straw men” to purchase properties, which he would manage and operate with an overarching plan to defraud his clients and mortgagee banks. As alleged in the federal criminal action, defendant claims that he was a victim of Assoumou's mortgage fraud ring, and that it is against equity and good conscience for Assoumou to be permitted to profit by his own wrong. In view of the criminal charges, to which Assoumou pleaded guilty, defendant's claim of unclean hands is well founded. Plaintiff's representation that the criminal charges did not relate to the properties herein is belied by Assoumou's Objections to the Pre-sentencing Report which specifically references the transactions at issue here. In any event, plaintiff may not utilize an equitable theory of recovery to circumvent the statute of frauds (see Wings Assoc. v. Warnaco, Inc., 269 A.D.2d 183, 184 [1st Dept 2000], lv denied 95 N.Y.2d 759 [2000] ; American–European Art Assoc. v. Trend Galleries, 227 A.D.2d 170, 171 [1st Dept 1996] ). Thus, dismissal of plaintiff's third and sixth causes of action is mandated (see CPLR 3211[a] [5], [7] ).
CONCLUSION
Accordingly, defendant's motion to dismiss plaintiff's complaint is granted.
This constitutes the decision, order, and judgment of the court.