Opinion
03-31-2016
David LANDES, et al., Plaintiffs–Respondents, v. PROVIDENT REALTY PARTNERS II, L.P., et al., Defendants, PRP II Corp., et al., Defendants–Appellants.
Smith, Gambrell & Russell, LLP, New York (Victor M. Metsch of counsel), for appellants. Ira Daniel Tokayer, New York, for respondents.
Smith, Gambrell & Russell, LLP, New York (Victor M. Metsch of counsel), for appellants.
Ira Daniel Tokayer, New York, for respondents.
Opinion
Order, Supreme Court, New York County (Anil C. Singh, J.), entered December 4, 2015, which, to the extent appealed from as limited by the briefs, denied defendants PRP II Corp., BRG Gramercy Units LLC, and Daniel Benedict's motion to dismiss the complaint pursuant to CPLR 3211, unanimously affirmed, with costs.
Given that defendants had the full opportunity to raise their current CPLR 3211(a) arguments on their original CPLR 3211(a) motion to dismiss, the IAS court correctly denied the motion as violative of the “single motion rule” of CPLR 3211(e) (Barbarito v. Zahavi, 107 A.D.3d 416, 420, 968 N.Y.S.2d 422 [1st Dept.2013] ).
Were we to reach the merits, we would also find that the motion was properly denied. On a motion to dismiss based on documentary evidence, defendants had to show that the documents, here the agreements, dispositively refuted plaintiffs' allegations, as a matter of law (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] ). It is true that the parties were free to limit their duties, including fiduciary duties to one another (see Bailey v. Fish & Neave, 8 N.Y.3d 523, 529, 837 N.Y.S.2d 600, 868 N.E.2d 956 [2007] ).
Here, however, defendants failed to show that PRP's exercise of Provident's right to consent or veto any sale of the Imico interest for its own benefit was expressly permitted by the limited partnership agreement (see Renz v. Beeman, 589 F.2d 735, 745 [2d Cir.1978], cert. denied 444 U.S. 834, 100 S.Ct. 65, 62 L.Ed.2d 43 [1979] ). Nor is there any question that the purchase of the Imico interest was a corporate opportunity, given the relationship of the parties and Provident's control over any sale of that interest (see Lee v. Manchester Real Estate & Constr., LLC, 118 A.D.3d 627, 988 N.Y.S.2d 620 [1st Dept.2014] ).
MAZZARELLI, J.P., RENWICK, MOSKOWITZ, KAPNICK, KAHN, JJ., concur.