Opinion
5159 Index 653229/12
12-07-2017
Harry MOHINANI, et al., Plaintiffs–Respondents, v. Tzlila CHARNEY, etc., et al., Defendants–Appellants.
Olshan Frome Wolosky LLP, New York (Thomas J. Fleming of counsel), for appellants. Eaton & Van Winkle LLP, New York (Robert K. Gross of counsel), for respondents.
Olshan Frome Wolosky LLP, New York (Thomas J. Fleming of counsel), for appellants.
Eaton & Van Winkle LLP, New York (Robert K. Gross of counsel), for respondents.
Manzanet–Daniels, J.P., Mazzarelli, Kapnick, Webber, JJ.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered March 14, 2016, which, to the extent appealed from, denied defendants' motion to dismiss the breach of contract, fraudulent inducement, breach of fiduciary duty, and accounting claims, unanimously affirmed, with costs.
Contrary to defendants' contention, the complaint alleges the existence of an enforceable agreement. It is clear that Charney agreed to provide plaintiffs with equity in defendant LHC Club
LLC in exchange for their $4.5 million investment, and the specific terms governing plaintiffs' rights are not so indefinite as to render the agreement unenforceable (see Cobble Hill Nursing Home v. Henry & Warren Corp., 74 N.Y.2d 475, 482–483, 548 N.Y.S.2d 920, 548 N.E.2d 203 [1989], cert denied 498 U.S. 816, 111 S.Ct. 58, 112 L.Ed.2d 33 [1990] ). Nor is the agreement as alleged "inherently incredible" (see M & B Joint Venture, Inc. v. Laurus Master Fund, Ltd., 49 A.D.3d 258, 260, 262 n. 2, 853 N.Y.S.2d 300 [1st Dept 2008], mod on other grounds 12 N.Y.3d 798, 879 N.Y.S.2d 812, 907 N.E.2d 690 [2009] ; Jamaica Pub. Serv. Co. v. Compagnie Transcontinentale De Reassurance, 282 A.D.2d 227, 723 N.Y.S.2d 168 [1st Dept 2001] ).Defendants failed to demonstrate as a matter of law that the complaint does not state a claim for fraudulent inducement. An issue of fact exists whether plaintiffs had "knowledge of New York real estate or United States laws, customs or business practices with respect to real estate or investments" ( Roni LLC v. Arfa, 18 N.Y.3d 846, 849, 939 N.Y.S.2d 746, 963 N.E.2d 123 [2011] [internal quotation marks omitted] ). Thus, an issue of fact exists whether plaintiffs were sophisticated parties who can be charged with heightened due diligence obligations (see ACA Fin. Guar. Corp. v. Goldman, Sachs & Co., 25 N.Y.3d 1043, 1046–1047, 32 N.E.3d 921 [2015] ; HSH Nordbank AG v. UBS AG, 95 A.D.3d 185, 194–195, 941 N.Y.S.2d 59 [1st Dept 2012] ). Questions exist whether the alleged statements and omissions that induced plaintiffs to invest their money pertained to matters peculiarly within Charney's knowledge, and, thus, whether plaintiffs could have discovered them even with the exercise of due diligence (see ACA Fin. Guar. Corp., 25 N.Y.3d at 1044–1045, 32 N.E.3d 921 ; HSH Nordbank AG, 95 A.D.3d at 194–195, 941 N.Y.S.2d 59 ; see also Pludeman v. Northern Leasing Sys., Inc., 10 NY3d 486, 491–492, 860 N.Y.S.2d 422, 890 N.E.2d 184 [2008] ). To the extent some branches of the fraud claim may be duplicative of the breach of contract claim (see Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389–390, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987] ), it would be premature to dismiss them at this juncture.
The complaint alleges a fiduciary relationship between Charney, as the promoter of a real estate investment opportunity, and plaintiffs, as passive investors in the project (see Roni, 18 N.Y.3d at 848, 939 N.Y.S.2d 746, 963 N.E.2d 123 ).
In view of their alleged fiduciary relationship with Charney and their allegations that Charney did not provide a full accounting even after protracted discovery, plaintiffs are entitled to pursue their claim for an equitable accounting and related costs (see Adam v. Cutner & Rathkopf, 238 A.D.2d 234, 656 N.Y.S.2d 753 [1st Dept 1997] ).