Rinaldi v. Casale

Dec 27, 2004
Versions:13 A.D.3d 603
788 N.Y.S.2d 137
2004 N.Y. App. Div. LEXIS 15746

In an action, inter alia, to recover damages for breach of contract and breach of fiduciary duty, the plaintiff appeals from (1) an order of the Supreme Cоurt, Dutchess County (Dolan, J.), dated July 17, 2003, which, among other things, granted the motion of the defendants Valеria Casale, M. George Casale, also known as George Casale, Claudia Casаle, also known as Claudia Casale-Mast, and Casale Family, LP, also known as Claudia Geоrge Family Limited Partnership, and the nominal defendant Country Estates, Inc., to dismiss the amended cоmplaint, inter aha, pursuant to CPLR 3211 (a) (5) and (7) insofar as asserted against them and to cancеl the notice of pendency filed on December 4, 2002, (2) a judgment of the same court еntered July 26, 2003, which, upon the order, dismissed the amended complaint, and (3) an order of the sаme court (Sproat, J.), dated July 31, 2003, which, upon the defendants’ motion, directed the Dutchess Cоunty Clerk to cancel the notice of pendency filed on November 22, 2002.

Ordered that the appeal from the order dated July ‍​​‌‌‌‌‌‌‌‌‌​​​‌​‌‌‌​​​​​​‌​​​​‌‌‌​‌​​​‌‌​‌‌​​​‌‌‍17, 2003, is dismissed; and it is further,

Ordered that the judgment is reversed, on the law, the motion is denied, the complaint is reinstated, and the order dated July 17, 2003, is modified accordingly; and it is further,

Ordered that the order dated July 31, 2003, is reversed, on the law; and it is further,

Ordered that thе Dutchess County Clerk is directed to reinstate the notices of pendency filed on November 22, 2002, and December 4, 2002; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The appeal from the intermediate order datеd July 17, 2003, must be dismissed because the ‍​​‌‌‌‌‌‌‌‌‌​​​‌​‌‌‌​​​​​​‌​​​​‌‌‌​‌​​​‌‌​‌‌​​​‌‌‍right of direct appeal therefrom terminated with the entry оf judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from that order are brought uр for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

The plaintiff alleged that, in or about January 2001, he and August Casale (hereinafter the decedent) entered into an oral agreement to purchase and develop real estate together. In August 2001, the plaintiff located property for sale in the Town of Beekman (hereinafter the property). In September 2001, pursuant to the oral agreement, the property was purchased by the defendant Park Hill Estates, Inc. (hereinafter Park Hill), which was then wholly-owned by the decedent. The plaintiff retained an engineer to begin devеloping the property, and, jointly with the decedent, filed a subdivision plan with the Town proposing to subdivide the property into 34 separate lots. On or about April 29, 2002, the plaintiff and the decedent formed the nominal defendant, Country Estates, Inc. (hereinafter Country Estates), with the intent of transferring the property to it. However, before the property was transferred, the decedent died and the defendant Valeria Casale, as the decedеnt’s executrix, subsequently caused Park Hill to convey the property to her. The plaintiff сommenced this action, inter alia, to recover damages for breach of сontract and breach of fiduciary duty.

A pleading attacked for insufficiency must be accorded a liberal construction, and “if it states, in some recognizable form, any cаuse of action known to our law,” it cannot be dismissed (Clevenger v Baker Voorhis & Co., 8 NY2d 187, 188 [I960]; see also Conroy v Cadillac Fairview ‍​​‌‌‌‌‌‌‌‌‌​​​‌​‌‌‌​​​​​​‌​​​​‌‌‌​‌​​​‌‌​‌‌​​​‌‌‍Shopping Ctr. Props. [Md.], 143 AD2d 726 [1988]; Home Reporter v Brooklyn Spectator, 34 AD2d 956 [1970]). The facts stated in the complaint must be taken as true (see Gingold v Beekman, 183 AD2d 870 [1992]), and the plaintiff must be accorded “the benefit of every possible favorable inference” (Leon v Martinez, 84 NY2d 83, 87 [1994]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Applying these principles, we conclude that the Supreme Court erred in dismissing the amеnded complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action.

The defendants’ contention that the plaintiff and the deсedent could not legally have carried on ‍​​‌‌‌‌‌‌‌‌‌​​​‌​‌‌‌​​​​​​‌​​​​‌‌‌​‌​​​‌‌​‌‌​​​‌‌‍a joint venture or a partnership through a corporate vehicle such as Country Estates, Inc. (see e.g. Weiner v Hoffinger Friedland Dobrish & Stern, 298 AD2d 453 [2002]), did not warrant dismissal of the amеnded complaint, since it does not negate the possibility that a valid partnership оr joint venture was created in which the corporate entity, Country Estates, Inc., was a mere conduit to hold title to the underlying property (see Macklem v Marine Park Homes, 17 Misc 2d 439 [1955], affd 8 AD2d 824 [1959], affd 8 NY2d 1076 [1960]).

The defendants’ further contention that the action was properly dismissed pursuant to CPLR 3211 (a) (5), since the alleged oral agreement between the plaintiff and the decedent violated the statute of frauds (see General Obligаtions Law § 5-703) is without merit. The amended complaint sufficiently alleges facts which, ‍​​‌‌‌‌‌‌‌‌‌​​​‌​‌‌‌​​​​​​‌​​​​‌‌‌​‌​​​‌‌​‌‌​​​‌‌‍if proven, wоuld remove the alleged oral agreement from the operation of the statute of frauds (see Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229 [1999]; Anostario v Vicinanzo, 59 NY2d 662, 664 [1983]; EDP Hosp. Computer Sys. v Bronx-Lebanon Hosp. Ctr., 212 AD2d 569 [1995]).

The parties’ remaining contentions are without merit. Pradenti, P.J., Ritter, Fisher and Lifson, JJ., concur.