Kiehl v. Cavicchio
Background
- Plaintiff John Kiehl alleges that he and defendant Robert Cavicchio formed a partnership/joint venture circa 1977 (Soundtrack) and that he contributed technical expertise, time, and some funds while sharing in profit distributions.
- Soundtrack grew into multi-office operations (Boston and New York) and acquired commercial real estate; Kiehl claims some or all real estate and business value belong to him as a 50% co-owner, while defendants assert the properties were purchased by other entities/trusts.
- Procedural posture: defendants moved pre-answer under CPLR § 3211 to dismiss all claims and separately moved to strike two affidavits (a self‑prepared transcript of a recorded conversation and a client affidavit); plaintiff opposed and sought jurisdictional discovery as to Soundtrack Boston.
- Documentary evidence (deeds, mortgages, W-2s, commission records, Partners Leasing agreements) was submitted by defendants; plaintiff relied on the transcript of a recorded meeting and a long‑time client affidavit (Prendatt).
- Court disposition: dismissed causes 1–5 (partnership/joint‑venture/related declaratory/accounting claims); denied dismissal of causes 6–7 (unjust enrichment; money had and received); dismissed two Massachusetts trust defendants for lack of personal jurisdiction; denied dismissal as to Soundtrack Boston and permitted discovery on jurisdiction; denied motion to strike the transcript and affidavit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of a partnership / joint venture | Kiehl says he was co‑founder, received profit shares, contributed technical services, deferred compensation, and made expenditures—showing shared profits, control and contributions | Defendants argue lack of loss‑sharing, no capital contributions to Soundtrack, W‑2 employee status and documentary evidence show Kiehl was not a partner | Court: partnership/joint‑venture claims (Causes 1–5) dismissed — plaintiff failed to plead indispensable element of loss‑sharing/capital contribution |
| Claim to ownership of Soundtrack real estate (and statute of frauds) | Kiehl contends properties were bought with partnership funds and thus are partnership assets | Defendants produced deeds/mortgages showing ownership by other entities/trusts and invoke statute of frauds/limitations | Court: property/ownership allegations were conclusory and contradicted by documentary evidence; related partnership claims dismissed |
| Personal jurisdiction over Massachusetts entities and Soundtrack Boston | Kiehl points to shared systems/storage, LinkedIn representation, and alleged intermingling; seeks discovery as to Soundtrack Boston | Defendants say Cavicchio Family Massachusetts LLC and Cavicchio Children Trust are Massachusetts entities with no NY contacts; Soundtrack Boston does not transact in NY | Court: dismissed Cavicchio Family Massachusetts LLC and Cavicchio Children Trust for lack of NY jurisdiction; denied dismissal as to Soundtrack Boston and allowed discovery on jurisdictional contacts |
| Admissibility of recorded transcript and client affidavit (motion to strike) | Kiehl authenticated a recording and certified a transcript; Prendatt attests to long‑term observations that Kiehl was presented as partner | Defendants claim transcript may be altered and that the conversation was settlement negotiation protected by CPLR § 4547; challenge Prendatt's personal knowledge | Court: denied motion to strike — transcript and Prendatt affidavit admissible for present motion; court found conversation was not settlement negotiation; credibility/accuracy issues for later resolution |
| Unjust enrichment / money had and received (Causes 6–7) | Kiehl alleges defendants were enriched at his expense and equity requires restitution | Defendants argue salary and commissions over decades negate unjust enrichment and that the relationship to trusts is insufficiently close | Court: denied dismissal — unjust enrichment and money had and received survive to litigate factual disputes |
Key Cases Cited
- J.P. Morgan Sec. Inc. v. Vigilant Ins. Co., 21 N.Y.3d 324 (N.Y. 2013) (rules for CPLR § 3211(a)(7) liberal construction and consideration of documentary evidence)
- AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 5 N.Y.3d 582 (N.Y. 2005) (pleading standards on dismissal motions)
- Georgia Malone & Co., Inc. v. Rieder, 19 N.Y.3d 511 (N.Y. 2012) (elements and equitable nature of unjust enrichment)
- Walden v. Fiore, 571 U.S. 277 (U.S. 2014) (requirement of suit‑related conduct for specific jurisdiction)
- Lebedev v. Blavatnik, 193 A.D.3d 175 (1st Dep’t 2021) (loss‑sharing as an element in joint venture analysis)
- Moses v. Savedoff, 96 A.D.3d 466 (1st Dep’t 2012) (partnership analysis: sharing of profits and losses and capital contributions)