Gouleguine v Gouleguina Mkrtycheva

2024 NY Slip Op 31366(U)

April 19, 2024

Supreme Court, New York County

Docket Number: Index No. 158092/2021

Judge: Paul A. Goetz

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
NYSCEF DOC. NO. 185 

INDEX NO. 158092/2021 

RECEIVED NYSCEF: 04/19/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. PAUL A. GOETZ 

Justice 

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MARK GOULEGUINE, 

Plaintiff, 

- V -

MARIA GOULEGUINA MKRTYCHEVA, SOK HEIBERGER 

LLP 

Defendant. 

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PART 

INDEX NO. 158092/2021 

MOTION DATE 02/02/2024 

MOTION SEQ. NO. 007 

DECISION + ORDER ON 

MOTION 

47 

The following e-filed documents, listed by NYSCEF document number (Motion 007) 133, 134, 135, 136, 

137,138,139,141,142,143,144,145,146,147,148 

were read on this motion to/for AMEND CAPTION/PLEADINGS 

Upon the foregoing documents, it is 

Plaintiff, Mark Gouleguine moves to amend his complaint to add three causes of action 

for conversion, breach of fiduciary duty, and for an accounting. Defendant opposes arguing that 

the motion is procedurally defective, that the causes of action seek identical relief as other of 

plaintiffs causes of action; and that the causes of action are without merit. 

DISCUSSION 

"In general, [i]n the absence of prejudice or surprise to the opposing party, leave to 

amend a pleading should be freely granted unless the proposed amendment is palpably 

insufficient or patently devoid of merit" (Thomsen v Suffolk County Police Dept., 50 AD3d 1015, 

1017 [2d Dept 2008] [internal quotation marks removed]). "A request to amend a pleading, 

regardless of the statutory imperative that it be freely granted ... requires an examination of the 

underlying merit to determine if there is evidentiary proof that could be considered on a motion 

158092/2021 GOULEGUINE, MARK vs. GOULEGUINA MKRTYCHEVA, MARIA ET AL 

Motion No. 007 

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NYSCEF DOC. NO. 185 

INDEX NO. 158092/2021 

RECEIVED NYSCEF: 04/19/2024 

for summary judgment" (Am. Theatre for Performing Arts, Inc. v Consol. Credit Corp., 45 AD3d 

506 [1st Dept 2007]). 

First, as a preliminary matter defendant argues that plaintiff's motion must be denied 

because he did not supply a redlined proposed amended complaint along with the motion. "Any 

motion to amend or supplement pleadings shall be accompanied by the proposed amended or 

supplemental pleading clearly showing the changes or additions to be made to the pleading" 

(CPLR § 3025). However, when the changes are "properly highlighted ... in the counsel's 

affirmation and moving brief ... [this] technical defect [can be] overlooked" (Berkeley Research 

Group, LLC v FTI Consulting, Inc., 157 AD3d 486,490 [1st Dept 2018]). Here, plaintiff 

attached both the original and amended complaint and his attorney's affirmation is clear as to 

what amendments are sought so the motion will not be denied on these grounds. However, the 

substantive merit of the three additional causes of action needs to be examined. 

Conversion Claim 

Plaintiff seeks to add a cause of action for conversion, alleging that after selling the 

apartment unit that plaintiff and defendant co-owned, defendant instructed the escrow agent, 

SDK Heiberger LLP, not to disburse any funds to plaintiff until certain alleged claims of 

defendants' were fully satisfied from plaintiff's portions of the proceeds. 

The "elements of conversion are (1) plaintiffs possessory right or interest in the property 

and (2) defendant's dominion over the property or interference with it, in derogation of plaintiffs 

rights" (Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 50 [2006]). However, it is 

settled under New York law that a tort claim cannot arise "where plaintiff is essentially seeking 

enforcement of the bargain, [and instead] the action should proceed under a contract theory" 

(Sommer v Fed. Signal Corp., 79 NY2d 540,552 [1992]; see also Advanced Oxygen Therapy 

158092/2021 GOULEGUINE, MARK vs. GOULEGUINA MKRTYCHEVA, MARIA ET AL 

Motion No. 007 

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NYSCEF DOC. NO. 185 

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RECEIVED NYSCEF: 04/19/2024 

Inc. v Orthoserve Inc., 572 F Supp 3d 26, 38 [SDNY 2021] ["a claim for conversion cannot be 

sustained where the underlying facts are not sufficiently distinguishable from a breach of 

contract claim"]). 

Here, plaintiff already has two causes of action seeking a declaratory judgment that he is 

entitled to the full amount of his portion of the proceeds from the sale. While plaintiff argues that 

these causes of action are not breach of contract claims, he is still seeking an enforcement of the 

alleged agreement he had with defendant that they would evenly split the proceeds of the sale. 

As such, the proposed conversion cause of action is insufficient as a matter of law and leave to 

add this cause of action will be denied. 

Breach of Fiduciary Duty 

"To establish a prima facie case for breach of fiduciary duty, a plaintiff must allege "(1) 

the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages 

directly caused by the defendant's misconduct' (Vil. of Kiryas Joel v County of Orange, 144 

AD3d 895, 898 [2d Dept 2016]). Here, plaintiff alleges that defendant breached a fiduciary duty 

to him by demanding that the escrow agent not release the proceeds of the sale of the apartment 

to him. 

However, as with the conversion claim, when a cause of action for a breach of fiduciary 

duty is "premised upon the same facts and seek identical damages" as a breach of contract claim 

the breach of fiduciary duty claim should be dismissed ( Chowaiki & Co. Fine Art Ltd. v Lacher, 

115 AD3d 600 [1st Dept 2014]). As with the conversion claim, while plaintiff does not assert a 

breach of contract claim against defendant in this action, he is seeking a declaratory judgment to 

enforce an agreement to divide the sale proceeds evenly. Therefore, this cause of action is 

duplicative and leave to add this cause of action will be denied. 

158092/2021 GOULEGUINE, MARK vs. GOULEGUINA MKRTYCHEVA, MARIA ET AL 

Motion No. 007 

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NYSCEF DOC. NO. 185 

Accounting 

INDEX NO. 158092/2021 

RECEIVED NYSCEF: 04/19/2024 

"An equitable accounting involves a remedy designed to require a person in possession of 

financial records to produce them, demonstrate how money was expended and return pilfered 

funds in his or her possession" (Metro. Bank & Tr. Co. v Lopez, 189 AD3d 443,446 [1st Dept 

2020]). "The elements include a fiduciary or confidential relationship, money entrusted to the 

defendant imposing the burden of an accounting, the absence of a legal remedy, and in some 

cases a demand and refusal" (id.). 

Here, plaintiff alleges in the amended complaint that on June 18, 2021 plaintiff "made a 

demand upon Defendant to request an accounting with respect to her claims for the sum she was 

allegedly owed for the carrying costs and the sums she collected from renting the apartment to 

third parties during the time she exclusively occupied the apartment" (NYSCEF Doc No 137). 

While, defendant argues that the accounting cause of action is barred by the six year statute of 

limitations since plaintiff seeks records as far back as 2009, "[ c ]laims for an accounting accrue 

when there is either an open repudiation of the fiduciary's obligation or a judicial settlement of 

the fiduciary's account" (Campbell v Bank of Am., NA., 155 AD3d 820, 822 [2d Dept 2017]). 

Therefore, the statute of limitations began to run on June 18, 2021 when plaintiff alleges that the 

defendant refused to provide him with an accounting with respect to rents collected and sums 

expended in managing the apartment. 

Consequently, the accounting cause of action is not "palpably insufficient or patently 

devoid of merit" nor is it barred by the statute of limitations and leave to add this cause of action 

will be granted (Thomsen, 50 AD3d 1017). 

Accordingly, it is: 

158092/2021 GOULEGUINE, MARK vs. GOULEGUINA MKRTYCHEVA, MARIA ET AL 

Motion No. 007 

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NYSCEF DOC. NO. 185 

INDEX NO. 158092/2021 

RECEIVED NYSCEF: 04/19/2024 

ORDERED that the plaintiff's motion to amend his complaint is granted, to the extent that 

the fifth cause of action (for an Accounting) as set forth in the proposed amended complaint in the 

form annexed to the moving papers is permitted to be added, and is otherwise denied; and it is 

further 

ORDERED that, within 20 days from entry of this order, plaintiff shall serve a copy of this 

order with notice of entry and the amended complaint in conformity herewith; and it is further 

ORDERED that the defendant shall answer the amended complaint or otherwise respond 

thereto within 20 days from the date of said service. 

4/19/2024 

DATE PAUL A. GOETZ, J.S.C. 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

~ CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

158092/2021 GOULEGUINE, MARK vs. GOULEGUINA MKRTYCHEVA, MARIA ET AL 

Motion No. 007 

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□ OTHER 

□ REFERENCE 

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