### Gouleguine v GouleguinaMkrtycheva 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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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 ofaction for conversion, breach offiduciary duty, and for an accounting. Defendant opposes arguing that the motion is procedurally defective, that the causes ofaction seek identical reliefas other of plaintiffs causes ofaction; and that the causes ofaction are without merit. DISCUSSION "In general, [i]n the absence ofprejudice 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 ofmerit" (Thomsen v Suffolk County Police Dept., 50 AD3d 1015, 1017 [2d Dept 2008] [internal quotation marks removed]). "Arequest to amend a pleading, regardless ofthe statutory imperative that itbe freely granted
... requires an examination ofthe underlying merit to determine ifthere is evidentiaryproofthat could be considered on a motion

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### [* 1]NYSCEF DOC. NO. 185 INDEX NO. 158092/2021 RECEIVED NYSCEF: 04/19/2024

for summaryjudgment" (Am. Theatrefor PerformingArts, Inc. v Consol. Credit Corp., 45 AD3d 506 [1st Dept 2007]). First, as a preliminarymatter defendant argues that plaintiff's motion mustbe denied because he did not supply a redlined proposed amended complaint along with the motion. "Any motion to amend or supplementpleadings shall be accompaniedby 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 "properlyhighlighted
... in the counsel's affirmation and moving brief
... [this] technical defect [can be] overlooked" (Berkeley Research Group, LLCv 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 notbe denied on these grounds. However, the substantive merit ofthe three additional causes ofaction needs to be examined. Conversion Claim Plaintiffseeks to add a cause ofaction for conversion, alleging that after selling the apartmentunit thatplaintiffand defendant co-owned, defendant instructed the escrow agent, SDK Heiberger LLP, not to disburse any funds to plaintiffuntil certain alleged claims of defendants' were fully satisfied from plaintiff's portions ofthe proceeds. The "elements ofconversion are (1) plaintiffs possessory right or interest in the property and (2) defendant's dominion over the property or interference with it, in derogation ofplaintiffs rights" (Colavito v New York Organ DonorNetwork, Inc., 8 NY3d 43, 50 [2006]). However, it is settledunder New York law that a tort claim cannot arise "whereplaintiffis essentially seeking enforcement ofthe bargain, [and instead] the action should proceed under a contract theory" (Sommer v Fed. Signal Corp., 79 NY2d 540,552 [1992]; see alsoAdvanced Oxygen Therapy

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Inc. v Orthoserve Inc., 572 F Supp 3d 26, 38 [SDNY 2021] ["a claim for conversion cannotbe sustained where the underlying facts are not sufficiently distinguishable from a breach of contract claim"]). Here, plaintiffalready has two causes ofaction seeking a declaratoryjudgmentthat he is entitled to the full amount ofhis portion ofthe proceeds from the sale. While plaintiffargues that these causes ofaction are not breach ofcontract claims, he is still seeking an enforcement ofthe alleged agreement he had with defendant that they would evenly split the proceeds ofthe sale. As such, the proposed conversion cause ofaction is insufficient as a matter oflaw and leave to add this cause ofaction will be denied. Breach of Fiduciary Duty "To establish a prima facie case for breach offiduciary duty, a plaintiffmust allege "(1) the existence ofa fiduciary relationship, (2) misconduct bythe 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, plaintiffalleges that defendant breached a fiduciary duty to himby demanding that the escrow agent not release the proceeds ofthe sale ofthe apartment to him. However, as with the conversion claim, when a cause ofaction for a breach offiduciary duty is "premisedupon the same facts and seek identical damages" as a breach ofcontract claim the breach offiduciary duty claim shouldbe dismissed (Chowaiki & Co. FineArtLtd. v Lacher, 115 AD3d 600 [1st Dept 2014]). As with the conversion claim, while plaintiffdoes not assert a breach ofcontract claim against defendant in this action, he is seeking a declaratoryjudgment to enforce an agreement to divide the sale proceeds evenly. Therefore, this cause ofaction is duplicative and leave to add this cause ofaction will be denied.

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### [* 3]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 orherpossession" (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 ofan accounting, the absence ofa legal remedy, and in some
cases a demand and refusal" (id.). Here, plaintiffalleges 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 DocNo 137). While, defendant argues that the accounting cause ofaction is barred bythe six year statute of limitations since plaintiffseeks records as far back as 2009, "[c]laims for an accounting accrue when there is either an open repudiation ofthe fiduciary's obligation or ajudicial settlement of the fiduciary's account" (Campbell vBankof Am., NA., 155 AD3d 820, 822 [2d Dept 2017]). Therefore, the statute oflimitations began to run on June 18, 2021 when plaintiffalleges that the defendant refused to provide himwith an accounting with respect to rents collected and sums expended in managing the apartment. Consequently, the accounting cause ofaction is not "palpably insufficient orpatently devoid ofmerit" nor is it barred bythe statute oflimitations and leave to add this cause ofaction will be granted (Thomsen, 50 AD3d 1017). Accordingly, it is:

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ORDERED that the plaintiff's motion to amendhis complaintis granted, to the extent that the fifth cause ofaction (for an Accounting) as set forth inthe proposed amended complaintinthe 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 ofthis order, plaintiffshall serve a copy ofthis order with notice ofentry and the amended complaint in conformityherewith; and it is further ORDERED that the defendant shall answer the amended complaint or otherwise respond thereto within 20 days from the date ofsaid 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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