Opinion
Index 721632/20
11-05-2021
PASQUALE SPORTELLI, Plaintiff, v. JESSICA KOBLENZ, Defendant. Seq. No. 1
ROBERT I. CALORAS JUDGE.
Unpublished Opinion
PRESENT: HON. ROBERT I. CALORAS Justice.
SHORT FORM ORDER
ROBERT I. CALORAS JUDGE.
The following numbered papers EF3-EF12, EF17-EF18 read on this motion by defendant Jessica Koblenz (defendant), to dismiss the first cause of action for fraud/fraudulent inducement as it relates to the claimed need for continuing treatment, the second cause of action for breach of fiduciary duty, and the third cause of action for breach of contract pursuant to CPLR § 3211(a)(7), to dismiss the first cause of action for fraud in record keeping pursuant to CPLR §3211(a)(1) and (7), to dismiss all claims based on deteriorations in cognitive abilities as such damages are not available under any theory pleaded in this action, to dismiss the action pursuant to CPLR 3211 (a)(5), on the basis of res judicata, and to direct the Clerk of the Court to enter judgment on all causes of action in defendant's favor, without interest, costs or disbursements.
Papers Numbered
Notice of Motion - Affidavits - Exhibits............................................. EF 3-12
Answering Affidavits - Exhibits.......................................................... EF 17
Reply Affidavits................................................................................... EF 18
Upon the foregoing papers it is ordered that the motion is determined as follows:
This is an action to recover damages for: 1) fraud/fraudulent inducement, 2) breach of fiduciary duty, and 3) breach of contract. Plaintiff Pasquale Sportelli (plaintiff), has alleged that beginning on or about June 6, 2014, plaintiff sought psychological therapeutic assistance from defendant for a memory issue.
In the complaint, plaintiff has alleged that, as part of his treatment, "[p]laintiff entered into an agreement with the [d]efendant for private and confidential therapy sessions to treat a particular issue that he was experiencing. Instead of receiving therapy for the issue, over the course of approximately sixteen (16) months, the [p]laintiff was induced into continuous harmful psychological treatment in what he was led to believe was an environment that would assist the issue he was seeking treatment for. The [d]efendant abused the [p]laintiff s trust and left the [p]laintiff in a far worse state of mind than when he originally began treatment with the [d]efendant. The [d]efendant's actions were wrongful and the harm suffered by the [p]laintiff is compensable." Plaintiff has further alleged that in or around May 2015, he attempted to terminate his relationship with defendant, but defendant would not permit him to do so, which resulted in plaintiff suffering an acute stress reaction on or about July 31, 2015. Plaintiff has alleged that defendant's various actions proximately caused him to sustain injuries.
Defendant has now moved to, among other things, dismiss the action pursuant to CPLR 3211 (a)(5), on the basis of res judicata. CPLR § 3211 (a)(5) provides that a party may also move to dismiss "one or more causes of action asserted against him on the ground that... the cause of action may not be maintained because of... res judicata ..." "[U]nder the transactional approach adopted by New York in res judicata jurisprudence, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (Grossman v. New York Life Ins. Co., 90 A.D.3d 990, 991 [2d Dept 2011] [internal quotes and citation omitted], Iv dismissed 19 N.Y.3d 991 [2012]; see Coliseum Towers Assoc, v. County of Nassau, 217 A.D.2d 387, 389-390 [2d Dept 1996]). "Doctrines such as ... res judicata ... serve to protect the sanctity and finality of judicial orders and judgments. They thus remain inviolate unless they are reversed by appellate processes or are vacated by the court itself..." (Countrywide Home Loans, Inc. v. Taylor, 39 Misc.3d 597, 599 [Sup Ct, Suffolk County 2013]).
Defendant has argued that the complaint in the instant action is identical to the complaint filed by plaintiff in an earlier action, which prior action was dismissed by the State of New York, Supreme Court, Appellate Division, Second Department, in a decision dated October 21, 2020, and entered on October 21, 2020 (Sportelli v. Koblenz, 187 A.D.3d 1088 [2d Dept 2020]). In opposition, plaintiff has argued that the doctrine of res judicata does not apply in this case and that plaintiff is entitled to the protections afforded by CPLR § 205, because the prior action was not terminated by voluntary discontinuance, a failure to obtain personal jurisdiction, a dismissal for neglect to prosecute, or a final judgment on the merits.
In the prior action, the Appellate Division, Second Department, stated, in relevant part, that:
"Supreme Court should have granted that branch of the defendant's ... motion which was to dismiss the action based on the plaintiffs failure to comply with so much of the July 2018 order as directed him to expeditiously file and serve a signed complaint. The plaintiff failed to offer a reasonable excuse for his failure to comply with the July 2018 order directing him to expeditiously file and serve a signed complaint. The plaintiff did nothing for over six months, and then did so only in response to the defendant's second motion to dismiss the action. Since the plaintiffs excuse for his failure to comply with the July 2018 order was not reasonable, the court should have granted that branch of the defendant's motion which was to dismiss the action..."
CPLR § 205 (a), provides the following:
"New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff... may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period. Where a dismissal is one for neglect to prosecute the action made pursuant to rule thirty-two hundred sixteen of this chapter or otherwise, the judge shall set forth on the record the
specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation."
A careful reading of the order of the Appellate Division, Second Department dismissing the prior action has demonstrated that the court's dismissal of plaintiff s prior action was not stated therein as "neglect to prosecute." The Appellate Division, Second Department did not "set forth .. specific conduct constituting the neglect," which sufficiently demonstrated a "general pattern" of plaintiffs delays when proceeding with the litigation, especially given the very early stages of the proceedings in the prior action (CPLR § 205 [a], 3216[b]). Furthermore, the provisions of CPLR § 3216, were not satisfied in that, at the very least, issue had not been joined in the prior action. CPLR § 3216, also provides that "[u]nless the order specifies otherwise, the dismissal is not on the merits," and the order of the Appellate Division, Second Department did not so state, nor did it state that the action was dismissed with prejudice. Therefore, in light of the above, defendant is not entitled to the relief sought on this branch of the motion.
Next, defendant has moved to dismiss the first cause of action for fraud/fraudulent inducement as it relates to the claimed need for continuing treatment pursuant to CPLR § 3211(a)(7), to dismiss the first cause of action for fraud in record keeping pursuant to CPLR §3211(a)(1) and (7), and to dismiss both the second cause of action for breach of fiduciary duty and the third cause of action for breach of contract pursuant to CPLR § 3211(a)(7).
CPLR § 3211(a)(1) provides that "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that... a defense is founded upon documentary evidence..." "To successfully move to dismiss a complaint pursuant to CPLR 3211(a)(1), the movant must present documentary evidence that 'resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim'" (AGCS Mar. Ins. Co. v. Scottsdale Ins. Co., 102 A.D.3d 899, 900 [2d Dept 2013], quoting Nevin v. Laclede Professional Prods., 273 A.D.2d 453 [2d Dept 2000]; see Leon v. Martinez, 84 N.Y.2d 83, 88 [1994]; Bonavita v. Govt. Employees Ins. Co., 185 A.D.3d 892, 893 [2d Dept 2020]; Lakhi Gen. Contractor, Inc. v. N.Y. City Sch. Const. Auth., 147 A.D.3d 917 [2d Dept 2017]).
CPLR § 3211 (a)(7) provides that a party may move to dismiss an action on the ground that "the pleading fails to state a cause of action." "On a motion to dismiss pursuant to CPLR § 3211, the complaint is to be afforded a liberal construction" (Benitez v. Bolla Operating LI Corp., 189 A.D.3d 970 [2d Dept 2020]; CPLR § 3026; see Gorbatov v. Tsirelman, 155 A.D.3d 836 [2d Dept 2017]; Feldman v. Finkelstein & Partners, LLP, 76 A.D.3d 703, 704 [2d Dept 2010]). "'In reviewing a motion pursuant to CPLR § 3211(a)(7) to dismiss the complaint for failure to state a cause of action, the facts as alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court's function is to determine only whether the facts as alleged fit within any cognizable legal theory'" (Benitez v. Bolla Operating LI Corp., 189 A.D.3d at 970, quoting Mendelovitz v. Cohen, 37 A.D.3d 670, 671 [2d Dept 2007]; see Bianco v. Law Offices of Yuri Prakhin, 189 A.D.3d 1326 [2d Dept 2020]; Gorbatov v. Tsirelman, 155 A.D.3d at 836; Feldman v. Finkelstein & Partners, LLP, 76 A.D.3d at 704).
The court will address the branches of defendant's motion made with regard to the first cause of action. Defendant has argued that the first cause of action for fraud/fraudulent inducement, as it relates to the claimed need for continuing treatment, has failed to state a cause of action and that the allegations have not been set for with specificity as required by CPLR § 3016 (b). '"The elements of a cause of action [alleging] fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages'" (Garendean Realty Owner, LLC v. Lang, 175 A.D.3d 653, 653 [2d Dept 2019], quoting Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559 [2009]; see Shahid v. Ridgewood Bushwick Senior Citizens Council, Inc., 181 A.D.3d 744, 745 [2d Dept 2020]). '"A claim rooted in fraud must be pleaded with the requisite particularity under CPLR 3016(b)'" (Shahid v. Ridgewood Bushwick Senior Citizens Council, Inc., 181 A.D.3d at 745, quoting Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d at 559).
In addition to the determination of the Appellate Division, Second Department, discussed above, the record in this matter contains, among other things, copies of the pleadings and a copy of a document entitled "Privacy of Information Policies," dated June 6, 2014. Upon a careful review of the allegations set forth in the complaint, affording those allegations a liberal construction and accepting them to be true, as well as by giving plaintiff the benefit of every possible favorable inference, the court has determined that plaintiff has sufficiently alleged facts to constitute the elements of a cause of action for fraud/fraudulent inducement as it relates to a claimed need for continuing treatment (CPLR § 3016[b]; see generally Garendean Realty Owner, LLC v. Lang, 175 A.D.3d at 653).
Defendant has also argued that to the extent the first cause of action has alleged fraud/fraudulent inducement as to record keeping, plaintiff has failed to state a cause of action and that documentary evidence requires dismissal of this cause of action. However, upon a careful review of the record, the court has determined that defendant's documentary evidence has not resolved '"all factual issues as a matter of law, '" nor has defendant's evidence conclusively disposed of plaintiff s claim based upon fraud/fraudulent inducement as to record keeping (AGCS Mar. Ins. Co. v. Scottsdale Ins. Co., 102 A.D.3d at 900, quoting Nevin v. Laclede Professional Prods., 273 A.D.2d at 453).
Furthermore, upon a thorough review of the allegations contained in the complaint, when those allegations are afforded a liberal construction, accepted as true, and plaintiff has been given the benefit of every possible favorable inference, the court has determined that plaintiff has sufficiently alleged each of the elements of a cause of action for fraud/fraudulent inducement as to record keeping (see generally Garendean Realty Owner, LLC v. Lang, 175 A.D.3d at 653). Although defendant has argued that plaintiff has suffered no actual damages, the court notes that on a motion made pursuant to CPLR § 3211 (a)(7), in general, "[t]he court is limited to 'an examination of the pleadings to determine whether they state a cause of action'" (Dolphin Holdings, Ltd. v. Gander & White Shipping, Inc., 122 A.D.3d 901, 902 [2d Dept 2014], quoting Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 N.Y.3d 342, 351 [2013]; see Fedele v. Qualified Pers. Residence Trust of Doris Rosen Margett, 137 A.D.3d 965, 967 [2d Dept 2016]), and "[w]hether the plaintiff can ultimately establish the allegations 'is not part of the calculus'" on such a motion (Aberbach v. Biomedical Tissue Servs., Ltd., 48 A.D.3d 716, 717-18 [2d Dept 2008], quoting EBCI, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19 [2005]; see Etzion v. Etzion, 62 A.D.3d 646, 651 [2d Dept 2009]). Therefore, in light of the above determinations, defendant has failed to satisfy her burden as to the first cause of action.
Next, with regard to the second cause of action for breach of fiduciary duty, defendant has argued that it has failed to state a cause of action pursuant to CPLR § 3211(a)(7), because plaintiff has failed to plead, in detail, the circumstances that would constitute a breach and that vague statements and conclusory statements do not comply with the requirements in pleading an action for breach of fiduciary duty. '"The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant's misconduct'" (Litvinoff v. Wright, 150 A.D.3d 714, 715 [2d Dept 2017], quoting Rut v. Young Adult Inst, Inc., 74 A.D.3d 776, 777 [2d Dept 2010]; see Bd. of Managers of Brightwater Towers Condominium v. First Service Residential New York, Inc., 193 A.D.3d 672 [2d Dept 2021]). Additionally, '"[a] cause of action sounding in breach of fiduciary duty must be pleaded with particularity under CPLR 3016(b)'" (Litvinoff v. Wright, 150 A.D.3d at 715, quoting Swartz v. Swartz, 145 A.D.3d 818, 823 [2d Dept 2016]; see MCRealty Corp. v. City of Yonkers, 193 A.D.3d 1018 [2d Dept 2021]; DeMartino v. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 189 A.D.3d 774, 775 [2d Dept 2020]).
In this case, upon a careful reading of the allegations contained in the complaint, affording plaintiffs allegations a liberal construction, accepting the facts alleged to be true, and granting plaintiff the benefit of every possible favorable inference, the court has concluded that, under the particular circumstances in this matter, the complaint has adequately, and with sufficient particularity, alleged facts to constitute the elements of a cause of action for breach of fiduciary duty (CPLR§ 3Ol6[b]; see generally Litvinoff v. Wright, 150 A.D.3d at 715). As such, defendant is not entitled to the dismissal of this cause of action.
As to the third cause of action for breach of contract, defendant has argued that plaintiff has failed to state a cause of action pursuant to CPLR § 3211(a)(7), because, among other things, the various provisions of the parties' agreement were not set forth in the complaint. Despite defendant's contention that there was "no theft of information and no damage caused to the plaintiff," on the instant motion, the court is limited to an examination of the pleadings on the instant motion (see Fedele v. Qualified Pers. Residence Trust of Doris Rosen Margett, 137 A.D.3d at 967; Dolphin Holdings, Ltd. v. Gander & White Shipping, Inc., 122 A.D.3d at 902; Etzion v. Etzion, 62 A.D.3d at 651; Aberbach v. Biomedical Tissue Servs., Ltd., 48 A.D.3d at 717-18).
"The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiffs performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach" (WMC Realty Corp. v. City of Yonkers, 193 A.D.3d 1018 [2d Dept 2021]; see El-Nahal v. FA Mgt, Inc., 126 A.D.3d 667, 668 [2d Dept 2015]; Dee v. Rakower, 112 A.D.3d 204, 208-09 [2d Dept 2013]). Upon a thorough reading of the allegations contained in the complaint, affording those allegations a liberal construction, accepting the facts alleged therein to be true, and granting plaintiff the benefit of every possible favorable inference, the court has concluded that the complaint has sufficiently alleged the elements of a cause of action for breach of contract (see generally WMC Realty Corp. v. City of Yonkers, 193 A.D.3d at 1018). Therefore, defendant is not entitled to the dismissal of this cause of action.
Lastly, to the extent that defendant has moved to dismiss all claims on the basis that, although each of plaintiff s causes of action include a claim relating to the alleged deterioration of plaintiff s cognitive abilities, such damages are not available under any theory pleaded in this action. After a careful examination of the pleadings, the court has concluded that plaintiff has sufficiently alleged pecuniary losses as a result of defendant's action regarding each cause of action stated and, thus, defendant is not entitled to the dismissal of plaintiff s causes of action on this basis (see generally Cont. Cas. Co. v. PricewaterhouseCoopers, LLP, 15 N.Y.3d264, 271 [2010]; Achieve It Sols., LLC v. Lewis, 186 A.D.3d 49, 56 [2d Dept 2020]; Glob. Granite Sales Corp. v. Sabovic, 166 A.D.3d 587, 589 [2d Dept 2018]; Stein v. McDowell, 14 A.D.3d 1323, 1326 [2d Dept 2010]; Scivoli v. Levit, 45 A.D.3d 667, 668 [2d Dept 2007] [fact that recoverable damages for fraud do not include pain and suffering does not justify dismissal of complaint where there is some likelihood that plaintiff may ultimately be able to establish some pecuniary injury]).
In light of the above, defendant is not entitled to have the Clerk of the Court enter judgment on all causes of action in defendant's favor. The parties' remaining contentions have been considered and found to be without merit.
Accordingly, the motion is denied in its entirety.