William Cornwell ("Plaintiff") is the owner of 69 Horatio Street in New York County ("the building"). Plaintiff alleges in his complaint that he contacted defendant Citi-Habitats ("Citi"), acting through its agent, defendant John Tarjavaara ("Tarjavaara"), to offer Apartment 2F for a monthly rent of $2,500 for a term of one year commencing on May 1, 2009. The contract between Plaintiff and Citi provided that Tarjavaara would accompany all potential tenants and brokers at the premises. In or around May 2009, defendant Amir Meiri ("A. Meiri"), a real estate agent for Citi, visited 2F and expressed an interest in renting the apartment. Plaintiff states that, "[u]pon information and belief, [A. Meiri] did not advise any agents or employees of [Citi] of his interest in renting 2F." Meiri showed up at the Building unannounced on May 16, 2009 at around 8:00 p.m. and requested to view 2F. Plaintiff states that he requested information regarding the propriety of renting 2F to A. Meiri, who responded that he would "take care of it." [*2]A. Meiri presented Cornwell with a handwritten lease agreement, which provided for a term of eight years at a monthly rent of $1,166.66, and further provided A. Meiri with a right of first refusal in the event that Plaintiff elected to sell the Building. Plaintiff alleges that he was "confused by the terminology contained in the lease agreement but felt compelled to sign."

Plaintiff further states in his complaint that, on May 20, 2009, A. Meiri came to the Building to inquire about renting Apartment 2R. Plaintiff states that Apartment 2R was not yet on the market, and that he had only told Tarjavaara and Citi that 2R would become available. A. Meiri proposed that he and Plaintiff enter into a ten year lease of Apartment 2R for a sum of $50,000. Plaintiff claims that A. Meiri "abused his relationship" to Plaintiff "in forcing him to sign a nonstandard lease agreement." Plaintiff now brings the instant action against the defendants seeking damages for breach of contract, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, breach of the duty of loyalty, willful misconduct, tortious interference with contractual relations, and aiding and abetting a breach of a fiduciary duty.

Presently before the court are two separate motions to dismiss the complaint. First, defendants NRT NY LLC, the Corcoran Group, Citi and Tarjavaara (collectively "Citi Defendants") move to dismiss Plaintiff's complaint pursuant to CPLR §3211(a)(1), (5) and (7). Citi Defendants submit an attorney's affirmation and a memorandum of law in support of their motion. Citi Defendants argue that Plaintiff's claims against them are barred by collateral estoppel and res judicata based upon the court's November 25, 2009 decision in the matter titled Cornwell v. Meiri, Index No. 109844/09 ("the Sherwood decision") wherein the Hon. O. Peter Sherwood rejected Plaintiff's claims that Plaintiff was either coerced, or fraudulently induced into signing the handwritten leases for Apartments 2F and 2R, and found the subject leases to be valid. Citi Defendants further argue that they cannot be held vicariously liable for the acts of A. Meiri because (a) A. Meiri was an independent contractor; and (b) even assuming arguendo that A. Meiri was an employee of Citi, his actions were outside the scope of his employment with Citi and were in fact contrary to Citi's interests. Citi Defendants also argue that Plaintiff fails to state a claim because it was Plaintiff who breached the contract between Citi and Plaintiff by entering into a "side deal" to rent Apartments 2F and 2R to A. Meiri and his father Herzel ("H. Meiri"). [*3]

In addition, A. Meiri moves to dismiss the action as against him, and submits an attorney's affirmation in support of his motion. A. Meiri similarly argues that Plaintiff's claims are defeated for the reasons set forth in the Sherwood decision, and that Plaintiff otherwise fails to state a viable cause of action.

Plaintiff opposes both motions.

CPLR §3211 provides, in relevant part:

(a)a party may move for judgment dismissing one or more causes of action asserted against him on the ground that:

(1)a defense is founded upon documentary evidence;

(5)the cause of action may not be maintained because of ... collateral estoppel, [or] res judicata; or

(7)the pleading fails to state a cause of action.

In determining whether dismissal is warranted for failure to state a cause of action, the court must "accept the facts alleged as true ... and determine simply whether the facts alleged fit within any cognizable legal theory." (People ex rel. Spitzer v. Sturm, Ruger & Co., Inc., 309 AD2d 91[1st Dept. 2003]) (internal citations omitted) (see CPLR §3211[a][7]). On a motion to dismiss pursuant to CPLR §3211(a)(1) "the court may grant dismissal when documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." (Beal Sav. Bank v. Sommer, 8 NY3d 318, 324 [2007]) (internal citations omitted) "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]) (emphasis added). A movant is entitled to dismissal under CPLR §3211 when his or her evidentiary submissions flatly contradict the legal conclusions and factual allegations of the complaint (Rivietz v. Wolohojian, 38 AD3d 301 [1st Dept. 2007]) (citation omitted).

Collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or [*4]proceeding and decided against that party ..., whether or not the tribunals or causes of action are the same' ( Ryan v New York Tel. Co., 62 NY2d 494, 500; see also, Burgos v Hopkins, supra, 14 F3d, at 792). The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action ( Ryan v New York Tel. Co., supra, at 500-501). [T]he burden rests upon the proponent of collateral estoppel to demonstrate the identicality and decisiveness of the issue, while the burden rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue in [the] prior action or proceeding' ( id., at 501).

(Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]).

Plaintiff's first cause of action for breach of contract states that, pursuant to the terms of the contract between Plaintiff and Citi, Citi was to offer Apartment 2F for $2,500 per month. In addition, Tarjavaara was supposed to accompany all potential renters and real estate brokers to the premises. Since these conditions were not fulfilled, Plaintiff claims that all defendants are liable for breach of contract. The court finds that Plaintiff's breach of contract action must be dismissed as against all defendants based upon the Sherwood decision. There, Justice Sherwood found that the leases were valid and freely entered into by Plaintiff. Accordingly, Plaintiff is estopped from claiming that Citi and/or A. Meiri breached their obligations under the contract.

Plaintiff's second cause of action is for defendants' alleged breach of the covenant of good faith and fair dealing. Plaintiff alleges that A. Meiri's actions prevented him from receiving the benefits of the contract entered into by Plaintiff and Citi, and that Citi is vicariously liable to Plaintiff due to the actions of A. Meiri, as Citi's agent. "It is axiomatic that all contracts imply a covenant of good faith and fair dealing in the course of performance. This covenant embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract" (Forman v. Guardian Life Ins. Co. of America, 2010 6606, *2 [1st Dept. 2010]) (citations and internal quotations omitted). Here, again, Plaintiff's claim must be dismissed against all defendants based upon the Sherwood decision. The acts which allegedly deprived Plaintiff of the benefit of the contract with Citi (A. Meiri's entering into the handwritten lease with Plaintiff for the rental of 2F) were [*5]voluntarily agreed to by Plaintiff himself, as held by Justice Sherwood. Thus, Plaintiff cannot claim that A. Meiri or Citi breached the covenant of good faith and fair dealing.

Plaintiff's third cause of action is for breach of fiduciary duty. Plaintiff alleges that he placed his trust in Citi, Tarjavaara and A. Meiri, and that these defendants took advantage of Plaintiff's trust to Plaintiff's detriment.

In New York, it is well settled that a real estate broker is a fiduciary with a duty of loyalty and an obligation to act in the best interests of the principal.... The broker/principal relationship and an accompanying fiduciary duty can be severed by agreement of the parties or by unilateral action of the principal.... Where a broker's interests or loyalties are divided due to a personal stake in the transaction ...,the broker must disclose to the principal the nature and extent of the broker's interest in the transaction or the material facts illuminating the broker's divided loyalties. The disclosure to be effective must lay bare the truth, without ambiguity or reservation, in all its stark significance.

(Dubbs v. Stribling & Assocs., 96 NY2d 337, 340-41 [2001]) (citations and internal quotations omitted). The court finds that Plaintiff has stated a viable cause of action against A. Meiri for breach of fiduciary duty. Plaintiff sufficiently alleges that A. Meiri abused his position as his real estate agent by entering into an agreement with Plaintiff whereby A. Meiri would lease Apartment 2F arguably well below the market rate, along with other terms that were "extremely favorable," in the words of Justice Sherwood, without proper disclosure to Plaintiff.

However, the court finds that Plaintiff's fiduciary duty claims fail against the Citi Defendants. First, the Citi Defendants submit the Salesperson Agreement between Citi and A. Meiri, which provides, inter alia, as follows:

It is hereby agreed that the Salesperson [A. Meiri] is engaged as an independent contractor for all purposes ... and that he or she shall not hold himself or herself out to be an officer, partner or employee of CITI and shall have no authority to bind CITI without the express written authority of an authorized officer of CITI.

It is well settled that, barring exceptions not applicable to this action, a party who [*6]retains an independent contractor cannot be held vicariously liable for the acts of the contractor (see Kleeman v. Rhinegold, 81 NY2d 270, 273 [1993]). Plaintiff's argument that Citi Defendants are nevertheless vicariously liable under the principle of apparent authority is defeated by the documentary evidence and Plaintiff's own complaint. As stated by the Court of Appeals in Hallock v. State of New York,

Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction. The agent cannot by his own acts imbue himself with apparent authority. Rather, the existence of 'apparent authority' depends upon a factual showing that the third party relied upon the misrepresentation of the agent because of some misleading conduct on the part of the principal — not the agent.

(64 NY2d 224, 231 [1989]). As acknowledged by Plaintiff in his complaint, the contract between Plaintiff and Citi provided that Citi was to rent Apartment 2F "at a monthly rent of $2500 for a term of one years [sic]," and further provided that the contract could "only be amended or modified by a written document signed by the parties ...." The clear and unambiguous terms of the contract between Plaintiff and Citi narrowly circumscribed Citi's authority to rent the apartment to a specific period of time, and for a specific monthly rent; it further provided that the conditions of the contract could only be modified by a writing signed by the parties. Plaintiff neither provides evidence, nor alleges in his complaint that Citi, through any of its actions, cloaked A. Meiri with the authority to enter into an eight-year lease with Meiri himself, for a significantly lower rent. A. Meiri's own assurance to Plaintiff that he would "take care of it" with Citi does not form the basis for finding apparent authority (see id.).

Moreover, even assuming arguendo that A. Meiri was in fact an employee of Citi, Citi Defendants cannot be held vicariously liable for A. Meiri's actions because A. Meiri's actions were taken solely for personal motives (i.e., securing Apartment 2F for himself at a rent well below market and for an extended period of time) and were unrelated to the furtherance of Citi's business (see Gottlieb v. Sullivan & Cromwell, 203 AD2d 241, 242 [2nd Dept. 1994]).Indeed, Plaintiff alleges in his complaint that A. Meiri "did not advise any agents or employees of [Citi] of his interest in renting 2F." [*7]

Plaintiff's fourth cause of action alleges that Plaintiff has suffered damages as a result of A. Meiri's willful misconduct, and that the Citi defendants are vicariously liable for A. Meiri's acts. Willful misconduct is action taken with a conscious indifference to the high probability of harm to another (see Coco Investments LLC v. Zamir Manager River Terrace LLC, 2010 NY Slip Op 50332U, *6 [Sup. Ct. NY Co. 2010]). Here, the court finds that Plaintiff's willful misconduct claim must be dismissed in accordance with the Sherwood decision, which held that Plaintiff voluntarily entered into a valid lease agreement with A. Meiri. While Plaintiff's complaint sufficiently alleges that A. Meiri's actions constitute a breach of fiduciary duty, the act of entering into a valid and enforceable lease with Plaintiff does not itself amount to willful misconduct.

Plaintiff's fifth cause of action is for tortious interference with contract. "Tortious interference with contract requires the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement of the third-party's breach of the contract without justification, actual breach of the contract, and damages resulting therefrom" (Havana Cent. NY2 LLC v. Lunney's Pub, Inc., 2007 NY Slip Op 10509, *5 [1st Dept. 2007], citing Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 [1996]). Plaintiff alleges in his complaint that A. Meiri "instigated and procured a breach of the contract" between Plaintiff and Citi. However, once again, Plaintiff's claim is defeated by the Sherwood decision, which specifically states that Plaintiff, voluntarily and free of fraud or duress, entered into the lease agreement with A. Meiri. Therefore, if indeed there was a breach of the contract between Plaintiff and Citi, it was commissioned by Plaintiff himself. Plaintiff cannot sustain a cause of action for tortious interference with contract under the theory that a third party induced him to breach his own contract with another party.

Plaintiff's sixth cause of action, for aiding and abetting a breach of fiduciary duty, alleges that A. Meiri "assisted in effectuating [the Citi defendants'] breach ...." This cause of action fails because, as previously noted, the Citi defendants were neither directly involved in the alleged breach of fiduciary duty, nor can they be held vicariously liable for A. Meiri's actions.

Plaintiff's seventh cause of action against A. Meiri for unjust enrichment also fails because "[i]t is well established ... that an unjust enrichment claim is [*8]barred under the rule that the existence of a valid contract governing the subject matter generally precludes recovery in quasi contract for events arising out of the same subject matter" (Adelaide Prods., Inc. v. BKN Int'l AG, 2007 NY Slip Op 1795, *2 [1st Dept. 2007]) (citations and internal quotations omitted).

Plaintiff's eighth and final cause of action alleges that defendants have caused the value of his building to be "severely and irreparably diminished" as the result of his leasing 2F for an eight-year period for a rent significantly lower than fair market rental. Here again, the court finds that Plaintiff's claim is barred by the Sherwood decision, which held that the lease entered into between Plaintiff and A. Meiri is valid and enforceable. Inasmuch as he was found to have freely and voluntarily entered into the lease agreement with A. Meiri, he cannot now blame defendants for the perceived negative economic consequentces that decision.

Wherefore it is hereby

ORDERED that Citi defendants' motion to dismiss the complaint herein is granted and the complaint is dismissed in its entirety as against said defendants, with costs and disbursements to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendants; and it is further

ORDERED that A. Meiri's motion to dismiss is granted as to Plaintiff's first, second, fourth, fifth, sixth, seventh, and eighth causes of action; and it is further

ORDERED that A. Meiri's motion to dismiss is otherwise denied; and it is further

ORDERED that the action is severed and continued against the remaining defendant; and it is further

ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further

ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the County Clerk (Room 141B) and the Clerk of the Trial Support Office (Room 158), who are directed to mark the court's records [*9]to reflect the change in the caption herein.

This constitutes the decision and order of the court. All other relief requested is denied.

DATED: March 30, 2011___________________________________

EILEEN A. RAKOWER, J.S.C.