SCE Assoc., Inc. v. Coglianese

179 A.D.3d 730

113 N.Y.S.3d 561 (Mem)

SCE ASSOC., INC., Appellant,

v.Steven COGLIANESE, et al., Respondents.

2018–05613

Index No. 607993/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—October 3, 2019

January 8, 2020

Akiva Shapiro Law, PLLC, Old Bethpage, NY, for appellant.

Franklin, Gringer & Cohen, P.C., Garden City, N.Y. (Steven E. Cohen of counsel), for respondents.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, SHERI S. ROMAN, BETSY BARROS, JJ.

DECISION & ORDER

In an action, inter alia, to recover unpaid commissions, the plaintiff appeals from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered March 30, 2018. The order, insofar as appealed from, granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the first and second causes of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

We agree with the Supreme Court's determination to grant that branch of the defendants' motion which was, in effect, pursuant to CPLR 3211(a)(5) to dismiss the plaintiff's first cause of action, alleging breach of contract, on the ground that the statute of frauds barred enforcement of the parties' oral agreement. The oral contract involving the payment of commissions was indefinite in nature and duration and was unenforceable in the absence of a writing (see General Obligations Law § 5–701[a][1], [10] ; Shapiro v. Eltman, Eltman & Cooper, P.C., 157 A.D.3d 835, 835, 69 N.Y.S.3d 660 ; Tamara Brokerage, Inc. v. Andreoli, 24 A.D.3d 536, 806 N.Y.S.2d 237 ; I. Levine & Sons v. Physician's Reciprocal Insurers, 246 A.D.2d 577, 578, 667 N.Y.S.2d 279 ; Apostolos v. R.D.T. Brokerage Corp., 159 A.D.2d 62, 64–65, 559 N.Y.S.2d 295 ). Contrary to the plaintiff's contention, "the exception to the statute of frauds for part performance has not been extended to General Obligations Law § 5–701" ( Kelly v. P & G Ventures 1, LLC, 148 A.D.3d 1002, 1004, 50 N.Y.S.3d 163 ; see Messner Vetere Berger McNamee Schmetterer Euro RSCG v. Aegis Group, 93 N.Y.2d 229, 234 n 1, 689 N.Y.S.2d 674, 711 N.E.2d 953 ; Stephen Pevner, Inc. v. Ensler, 309 A.D.2d 722, 766 N.Y.S.2d 183 ; Valentino v. Davis, 270 A.D.2d 635, 637–638, 703 N.Y.S.2d 609 ).

We also agree with the Supreme Court's determination to grant that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the plaintiff's second cause of action, alleging 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" ( Rut v. Young Adult Inst., Inc., 74 A.D.3d 776, 777, 901 N.Y.S.2d 715 ; see Litvinoff v. Wright, 150 A.D.3d 714, 715, 54 N.Y.S.3d 22 ; Deblinger v. Sani–Pine Prods. Co., Inc., 107 A.D.3d 659, 660, 967 N.Y.S.2d 394 ). "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, 54 N.Y.S.3d 22 ; see Swartz v. Swartz, 145 A.D.3d 818, 823, 44 N.Y.S.3d 452 ). Affording the second cause of action a liberal construction, accepting the facts alleged as true, and granting the plaintiff the benefit of every possible inference, the second cause of action failed to adequately plead the existence of a fiduciary relationship between the...