DECISION AND ORDER
KENNETH L. THOMPSON, JR., J.S.C.
The Decision/Order on this motion is as follows:
Defendants, Mark C. Lee, Sengdara, LLC and Global Estate, LLC move pursuant to CPLR 3211(a)(7) to dismiss the amended complaint. Plaintiff alleges that he entered into an oral agreement to form a joint venture partnership with defendants for the development of a commercial property owned by defendants. Plaintiff was to contribute "sweat equity" and would receive four commercials condominium spaces, would be a minority partner though he would have no decision-making authority, receive a share of the profits from the commercial property and would receive a share of the rents that were paid in excess of one dollar per square foot.
Plaintiffs argue that defendants' motion is procedurally defective because defendants are limited to a single motion to dismiss. Defendants prior motion to dismiss was denied as moot as plaintiff was granted leave to amend the complaint. "Nor does the motion violate the single motion rule (see CPLR 3211 [e]), since the prior motion was not decided on the merits." (Rivera v. Bd. of Educ. of City of New York, 82 A.D.3d 614 [1st Dept 2011]). Therefore, defendants' motion does not violate the single motion rule since the merits of the underlying motion to dismiss were not decided.
"On a motion to dismiss, the court is not called upon to determine the truth of the allegations (see, 19 Broadway Corp. v. Alexander's, Inc., 46 N.Y.2d 506, 509, 414 N.Y.S.2d 889, 387 N.E.2d 1205). Rather, the complaint should be liberally construed in favor of the plaintiff (see, Foley v. D'Agostino, 21 A.D.2d 60, 65-66, 248 N.Y.S.2d 121) solely to determine whether the pleading states a cause of action cognizable at law (see, Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17)." (Eastern Consolidated Properties, Inc. v Lucas, 285 A.D.2d 421-422 [1st Dept 2001]).
The causes of action that allege defendants' breach of a joint venture agreement are numbered 1st, 7th, 8th, 9th, 14th, 17th and 18th. With respect to whether a joint venture was formed by oral agreement, the alleged provision that would transfer to plaintiffs, four commercial properties runs afoul of the statute of frauds, since no writing of the agreement has been alleged. The amended complaint alleges that the alleged oral agreement for plaintiffs to obtain four commercial units "was to be memorialized into a writing by the lawyers."
GOL § 5-703(2)
Plaintiffs' argument that the agreement is not subject to the statute of frauds because the agreement concerns a joint venture is inapposite. (Walsh v. Rechler, 151 A.D.2d 473 [2nd Dept 1989]). In Walsh, the plaintiff sought an "accounting and a sum of money equal to 20% of the value of new acquisitions of real property." Id. In contrast, plaintiffs herein are seeking, in part, a direct interest in four commercial spaces owned by defendants, that plaintiff alleges was part of an oral contract between plaintiffs and defendants.
With respect to any remuneration for bringing in commercial tenants as alleged by plaintiffs' such activity also runs afoul of the statute of Frauds. "it is undisputed that no written agreement existed, and any oral agreement that BRA would serve as leasing agent for the property is unenforceable under the statute of frauds (General Obligations Law § 5-701[a])." (Hersh v. Weg, 105 A.D.3d 539 (1st Dept 2013]). GOL 701(a)(10) provides as follows:
There is no allegation that plaintiff is an auctioneer, attorney at law, a licensed real estate broker or real agent salesman.
Plaintiffs failed to allege that they would share in losses of the joint venture agreement in the 1st, 7th, 9th 14th causes of action,
Accordingly, the 1st, 7th, 8th, 9th, 14th, 17th and 18th causes of action are hereby dismissed on grounds of violation of the statute of frauds.
FRAUDULENT INDUCEMENT CLAIMS
The causes of action that allege defendants' fraudulent inducement to enter an oral joint venture agreement are numbered as follows: 2nd, 3rd, 4th and 5th. Plaintiffs' allegation regarding fraudulent inducement relates to the breach of contract regarding the formation of a joint venture.
(Bernbach v. Camp Wah-nee in the Berkshires, 176 A.D.2d 304, 305 [2nd Dept 1991]).
Accordingly, the 2nd, 3rd, 4th and 5th causes of action are dismissed.
The cause of action that alleges civil conspiracy is numbered 6th.
(Alexander & Alexander of New York, Inc. v. Fritzen, 68 N.Y.2d 968, 969 ).
Accordingly, the 6th cause of action is dismissed.
The cause of action for quantum meruit is numbered 10th. In Snyder v. Bronfman, 13 N.Y.3d 504 , "Plaintiff "developed for the Joint Venture a series of business relationships with key figures in the corporate and investment banking communities."" Id. The Court of Appeals held that the joint venture agreement that plaintiff alleges is void under the statute of frauds and quantum meruit damages are unobtainable.
(Snyder v. Bronfman, 13 N.Y.3d 504, 508-509 ).
Accordingly, the 10th cause of action for quantum meruit is dismissed.
The estoppel cause of action is the 11th cause of action.
(MacKay v. Paesano, 185 A.D.3d 915, 916 [2nd Dept 2020]).
As decided above, the allegations alleging a breach of the joint venture agreement are dismissed and therefore, the estoppel cause of action is dismissed.
Accordingly, the 11th cause of action is dismissed.
ABUSE OF PROCESS
The 12th cause of action alleges abuse of process.
(Curiano v. Suozzi, 63 N.Y.2d 113, 117 ).
Plaintiffs' abuse of process claim is not supported by factual allegations beyond alleged malicious motivations.
Accordingly, the 12th cause of action for abuse of process is dismissed.
BREACH OF FIDUCIARY DUTIES
The 13th cause of action alleges breach of fiduciary duties. "In light of these findings, [no joint venture found], plaintiff's causes of action for breach of fiduciary duty and for the imposition of a constructive trust fail as well." (Langer v. Dadabhoy, 44 A.D.3d 425, 426 [1ST Dept 2007]). Similarly, the causes of action predicated upon breach of a joint venture have been dismissed in this action and therefore, the breach of fiduciary duties must be dismissed as well.
Accordingly, the 13th cause of action for breach of fiduciary duties is Dismissed.
The 16th cause of action alleges entitlement to an accounting of joint venture income, expenses, profits and losses. "The claim for an accounting should have been dismissed in the absence of a fiduciary relationship arising out of the contract between the parties (see Elghanian v Elghanian, 277 A.D.2d 162 [1st Dept 2000], lv denied 96 N.Y.2d 712 ; Waldman v Englishtown Sportswear, 92 A.D.2d 833, 835-836 [1st Dept 1983])." (Maor v. Blu Sand Int'l Inc., 143 A.D.3d 579 [1st Dept 2016]). The causes of action alleging the breach of a joint venture have been dismissed and therefore, the cause of action for an accounting must be dismissed.
Accordingly, the 16th cause of action for an accounting is dismissed.
TORTIOUS INTERFERENCE WITH CONTRACT
The 15th cause of action is for tortious interreference with contract.
(Pac. Carlton Dev. Corp. v. 752 Pac., LLC, 62 A.D.3d 677, 679 [2nd Dept 2009]).
Defendants argue that "[p]laintiffs never claim that any of the contracts that Defendants allegedly interfered with were ever breached."
Accordingly, defendants' motion is denied to the extent that defendants seek to dismiss the fifteenth cause of action for tortious interference with contract.
Accordingly, defendants' motion to dismiss the amended complaint is denied to the extent of the 15th cause of action for tortious interference with contract. Otherwise, defendants' motion to dismiss the amended complaint is granted except for the 15th cause of action for tortious interference with contract.
The foregoing constitutes the decision and order of the Court.