Jones Law Firm, P.C. v J Synergy Green, Inc.
2024 NY Slip Op 31127(U)
April 2, 2024
Supreme Court, New York County
Docket Number: Index No. 653730/2023
Judge: Lyle E. Frank
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.
[FILED: NEW YORK COUNTY CLERK 04/02/2024 12:58 P~ INDEX NO. 653730/2023
NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 04/02/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. LYLE E. FRANK PART 11M
Justice
----------------------------------------------------------------- ----------------X INDEX NO. 653730/2023
JONES LAW FIRM, P.C.,
MOTION DATE 01/08/2024
Plaintiff,
MOTION SEQ. NO. 002
- V -
J SYNERGY GREEN, INC.,AVROHOM Y SOROTZKIN,
DECISION + ORDER ON
YAAKOV MILSTEIN,
MOTION
Defendant.
------------------------------------------------------------------- --------------X
J SYNERGY GREEN, INC., AVROHOM SOROTZKIN, Third-Party
YAAKOV MILSTEIN Index No. 595867/2023
Plaintiff,
-against-
JONES LAW FIRM, P.C., TANNER JONES, PROFESSIONAL
ARBITRATION AND MEDIATION, LLC, DAVID TREYSTER
Defendant.
-------------------------------------------------------------------------------- X
The following e-filed documents, listed by NYSCEF document number (Motion 002) 48, 49, 50, 75, 76,
77, 78, 79
were read on this motion to/for DISMISS
Upon the foregoing documents, third-party defendant Professional Arbitration and
Mediation LLC's (PAM) motion to dismiss the third-party complaint is granted and the cross-
motion to amend the third-party complaint is denied.
The underlying action arises out of allegations that defendant/third-party plaintiff failed
to pay plaintiffs legal fees as required by its engagement agreement. The third-party action and
counterclaims arise out of the plaintiffs relationship with third-party defendants PAM and David
Treyster, in that defendants/third-party plaintiffs were caused to suffer damages based on the
653730/2023 Motion No. 002 Page 1 of4
1 of 4
[* 1]
[FILED: NEW YORK COUNTY CLERK 04/02/2024 12:58 P~ INDEX NO. 653730/2023
NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 04/02/2024
failure to disclose the relationship. It is undisputed that at the time the engagement agreement
was signed by plaintiff and defendants, plaintiffs principal had a 100% ownership interest in
PAM.
Prior to filing the instant motion, the defendants/third-party plaintiffs and PAM entered
into a stipulation that withdrew all causes of action as against PAM with the exception of the
first cause of action of fraud and fifth Counterclaim alleging conspiracy to violate Judiciary Law
§ 487.
It is well-settled that on a motion to dismiss for failure to state a cause of action pursuant
to CPLR § 321 l(a)(7), the pleading is to be liberally construed, accepting all the facts as alleged
in the pleading to be true and giving the plaintiff the benefit of every possible inference. See
Avgush v Town of Yorktown, 303 AD2d 340 [2d Dept 2003]; Bernbergv Health Mgmt. Sys., 303
AD2d 348 [2d Dept 2003]. Moreover, the Court must determine whether a cognizable cause of
action can be discerned from the complaint rather than properly stated. Matlin Patterson ATA
Holdings LLC v Fed. Express Corp., 87 AD3d 836, 839 [1st Dept 2011]. "The complaint must
contain allegations concerning each of the material elements necessary to sustain recovery under
a viable legal theory."' Id.
"To establish fraud, a plaintiff must show 'a misrepresentation or a material omission of
fact which was false and known to be false by [the] defendant, made for the purpose of inducing
the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or
material omission, and injury."' Ambac Assur. Corp. v Countrywide Home Loans, Inc., 151 AD3d
83 at 85 [1st Dept 2017]. Further, CPLR § 3016(b) provides that when a cause of action is based
upon fraud "the circumstances constituting the wrong shall be stated in detail."
653730/2023 Motion No. 002 Page 2 of 4
2 of 4
[* 2]
[FILED: NEW YORK COUNTY CLERK 04/02/2024 12:58 P~ INDEX NO. 653730/2023
NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 04/02/2024
Recoverable damages for fraud are "out of pocket" damages, defined as damages that
would compensate plaintiff for damages sustained as result of the fraud (Connaughton v Chipotle
Mexican Grill, Inc., 29 NY3d 137, 143 [2017] internal citations omitted).
The Court finds that here, similar to the plaintiffs in Connaughton, the third-party
complaint and counterclaims fails to specify any compensable damages from PAM' s alleged fraud.
In opposition to PAMs motion the defendants/third-party plaintiffs contend that plaintiff and PAM
are agents of one another and thus PAM is vicariously liable for the plaintiffs alleged fraudulent
conduct. This argument however misses the mark and is also unsupported by specific factual
allegations. The third-party complaint and counterclaims fail to allege a sufficient basis to pierce
the corporate veil or any facts sufficient to support defendant/third-party plaintiffs' contention that
any alleged fraud caused any additional damages separate and apart from those incurred by the
alleged fraudulent conduct of plaintiff.
With respect to the cross-motion that seeks amendment of the third-party complaint, it is
well established that pursuant to CPLR 3025 (b), "[a] party may amend his or her pleading, ... ,
at any time by leave of court ... [and] [l]eave shall be freely given upon such terms as may be
just including the granting of costs and continuances." The Court of Appeals recognizes that
"[a]s a general rule, 'leave to amend a pleading should be freely granted in the absence of
prejudice to the nonmoving party where the amendment is not patently lacking in merit ... , and
the decision whether to grant leave to amend a complaint is committed to the sound discretion of
the court."' Davis v South Nassau Communities Hosp., 26 NY3d 563,580 [2015] (internal
citation omitted).
Here, the Court finds that allowing defendant/third-party plaintiffs amendment would be
futile. The proposed amended complaint fails to cure the deficiencies cited above. Similarly, the
653730/2023 Motion No. 002 Page 3 of 4
3 of 4
[* 3]
!FILED: NEW YORK COUNTY CLERK 04/02/2024 12: 58 PM! INDEX NO. 653730/2023
NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 04/02/2024
Court agrees that because the third-party complaint fails to properly state a claim for an
underlying tort there can be no conspiracy cause of action pursuant to Judiciary Law § 487 (Am.
Preferred Prescription, Inc. v Health Mgt., 252 AD2d 414,416 [1st Dept 1998]). Accordingly, it
is hereby
ORDERED that the third-party complaint is dismissed in is entirety as against
Professional Arbitration and Mediation LLC.
4/2/2024
DATE LYLE E. FRANK, J.S.C.
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
653730/2023 Motion No. 002 Page4 of 4
4 of 4
[* 4]