The following papers numbered 1 to 5 were read on the motion (seq. no. 1) by defendants Angelo Marchetti ("Angelo"), Jaret Marchetti ("Jaret"), Julia Marchetti ("Julia") and Victoria [*2]Marchetti ("Victoria") for an Order pursuant to CPLR §§ 3211(a)(1), (7) and/or (10) dismissing the Amended Complaint in this action:

This action arises from a dispute in connection with a family-owned real estate business. The lawsuit is brought by plaintiff Anna Marchetti ("Anna") along with her daughters, Rebecca Marchetti ("Rebecca"), Tania Marchetti ("Tania"), and Silena Marchetti ("Silena"),^[FN1] as well as family-owned entities Lapiano Enterprises, LLC ("Lapiano"), AASTRI, LLC ("AASTRI") and MG Target Realty, Inc. ("MG"). See NYSCEF Doc. No. 18. The defendants are Angelo, his wife Victoria, his children (Jaret and Julia), and J & J Horizon, Inc. ("J & J"), an entity of which Angelo, Julia, and Jaret are members. Id.

In sum and substance, the Amended Complaint alleges that through their various corporate entities, the family owns and manages numerous real estate holdings in Westchester County and East Hampton, New York, as well as out-of-state properties in Connecticut and Colorado. Id. at ¶¶ 1-89. It alleges that Angelo and his children have engaged in ongoing and repeated breaches of their contractual and fiduciary duties to plaintiffs, and have been unjustly enriched by, inter alia, improperly taking funds and assets from the family business and refusing to agree to business transactions unless plaintiffs met defendants' unreasonable and self-serving demands. Id.

Based upon the foregoing general allegations as set forth in great detail in the 34-page Amended Complaint, plaintiffs assert 17 causes of action that arise from defendants' alleged misconduct in connection with various properties owned by the family. Id. at ¶¶ 90-235. Specifically, plaintiffs assert 11 distinct claims against Angelo, Jaret and Julia, namely: (1) a first cause of action for breach of fiduciary duty; (2) a second cause of action for breach of the implied covenant of good faith and fair dealing; (3) a third cause of action for injunction; (4) a fourth cause of action for breach of fiduciary duty; (5) a fifth cause of action for unjust enrichment; (6) a sixth cause of action for breach of fiduciary duty; (7) a seventh cause of action for breach of contract; (8) an eighth cause of action for unjust enrichment; (9) a ninth cause of action for unjust enrichment; (10) a tenth cause of action for unjust enrichment; and (11) a thirteenth cause of action for unjust enrichment. Id. Plaintiffs also raise three claims against Angelo, i.e., an eleventh cause of action for breach of fiduciary duty, a twelfth cause of action for unjust enrichment, and a sixteenth cause of action for conversion. Id. The Amended Complaint further includes a fourteenth cause of action for unjust enrichment against Julia and Victoria; a fifteenth cause of action for unjust enrichment against Angelo and J & J; and a [*3]seventeenth cause of action for unjust enrichment against J & J. Id.

Angelo, Jaret, Julia and Victoria jointly move (seq. no. 1) to dismiss the Amended Complaint. See NYSCEF Doc. Nos. 22-33. Defendants' motion is grounded in two principal contentions. First, they argue that this action should be dismissed pursuant to CPLR § 3211(a)(10) for failure to name Ivana as a necessary party hereto. See NYSCEF Doc. No. 24. Second, defendants seek the CPLR §§ 3211(a)(1) and/or (7) dismissal of the first thirteen and the sixteenth causes of action. Id.^[FN2]

Plaintiffs oppose the motion, contending that Ivana is not a necessary party hereto and that the Amended Complaint adequately sets forth cognizable claims and thus should not be dismissed pursuant to either CPLR §§ 3211(a)(1) or (7). See NYSCEF Doc. No. 38. However, in opposition to defendants' motion, plaintiffs have voluntarily withdrawn their sixth cause of action for breach of fiduciary duty against Angelo, Jaret and Julia. See NYSCEF Doc. No. 38 at p. 13, fn 8. As such, the Court dismisses this claim herein pursuant to CPLR § 3211(a)(7).

CPLR § 3211(a)(10) states: "A party may move for judgment dismissing one or more causes of action asserted against him on the ground that . . . the court should not proceed in the absence of a person who should be a party." See CPLR § 3211(a)(10). CPLR § 1001(a), which is read in conjunction with CPLR § 3211(a)(10), requires that parties be joined only when they are necessary for "complete relief . . . to be accorded between the persons who are parties to the action" or if such party "might be inequitably affected by a judgment in the action." See CPLR § 1001(a). It is well-established that "[j]oinder is not necessary where the interests of the nonjoined party and a party who has been joined stand or fall together." Country Vill. Towers Corp. v Preston Communs., Inc., 289 AD2d 363, 364 (2d Dept 2001), citing Matter of Doner v Comptroller of State of NY, 262 AD2d 750, 751 (3d Dept 1999); accord Matter of People v Christensen, 77 AD3d 174, 184 (2d Dept 2010) (affirming the Supreme Court's determination that "joinder is not necessary to determine the issue raised in the petition").

Having reviewed the parties' submissions, the Court does not credit defendants' assertion that Ivana is a necessary party herein due to her partial ownership interests in plaintiff entities Lapiano, AASTRI and MG. Defendants have not established that Ivana will be "inequitably affected" by a judgment herein as contemplated by CPLR § 1001(a) because if plaintiffs prevail, Ivana will receive a potential benefit as a partial owner of the plaintiff entities, and if plaintiffs do not prevail, Ivana's rights as an owner thereof are not affected. See Country Vill. Towers Corp., 289 AD2d at 364 (holding that joinder was not necessary where a non-party "may be affected by the outcome of the action [but] will not be inequitably affected"); see also Signature Bank v Faibish, 142 AD3d 1069, 1070 (2d Dept 2016) (reversing the Supreme Court's CPLR § 3211[a][10] dismissal of an action where "[t]he defendants failed to establish either that complete relief could not be accorded between the parties without the nonparty . . . or that the [*4]nonparty . . . might be inequitably affected by a judgment in this action"); Mason Tenders Dist. Council Welfare Fund v Diamond Constr. & Maintenance, Inc., 84 AD3d 754, 755 (2d Dept 2011) (holding that "the Supreme Court properly found that nonparty Deutsche Bank National Trust Company did not need to be joined in the instant action in order to accord complete relief to the parties, and that Deutsche Bank National Trust Company was not inequitably affected by the renewal judgment").

The Court agrees with plaintiffs that complete relief can be afforded among the parties herein without joining Ivana, as Anna, Rebecca, Silena and Tania are seeking to vindicate their individual rights, not Ivana's rights. Moreover, where, as here, members of an LLC such as Lapiano and AASTRI do not seek to recover on behalf of another LLC member, that member is not a necessary party. See Gallagher v Crotty, 2017 NY Misc. LEXIS 2950, *5 (Sup. Ct. NY Cty. Aug. 3, 2017) (holding that "there is no need to require the joinder of any of the other members of the LLC . . . particularly because [certain] members [thereof] . . . are part of this action"); Mermelstein v Moezinia, 2015 NY Misc. LEXIS 5142, **16-17 (Sup. Ct. Nassau Cty. Oct. 7, 2015) (finding that joinder was unnecessary and holding that two out of four LLC members are not "necessary parties" that would be "inequitably affected" by a judgment seeking profits from the LLC's sale of real property). Similarly, Ivana's ownership of shares in MG, which is a corporation, does not require her joinder herein. See Baker v Latham Sparrowbush Assocs., 129 AD2d 667, 668 (2d Dept 1987) (holding that the property of a shareholder and of a corporation are distinct and therefore "a stockholder has no right to bring an action in his or her own name for a wrong committed against the corporation"); International Ass'n of Machinists & Aerospace Workers v Allegis Corp., 144 Misc 2d 983, 989 (Sup. Ct., NY Cty. 1989) (stating that "[j]ust as the individual stockholders have no right to bring an action in their own names for a wrong committed by the corporation, so, too, are they not proper parties, let alone necessary parties, to this action") (internal citation omitted).

Furthermore, it does not go unnoticed by the Court that in a related action commenced in 2023 by Angelo against Anna, Tania, Rebecca, and MG that also involves a dispute concerning the family's various real estate holding entities, Angelo conspicuously declined to name Ivana as a defendant therein. See Angelo Marchetti et al. v Anna Marchetti et al., (Westchester Cty. Sup. Ct. Index No. 65540/2023) (Hon. Linda S. Jamieson, J.S.C.) (the "Related Action"). In the Related Action, Angelo seeks to recover under a theory of breach of contract from MG, of which Ivana owns 50 percent of the corporate shares, but Angelo chose not to include Ivana in that lawsuit. This further confirms that Ivana is not a necessary party to the Related Action nor to this lawsuit, requiring the denial of defendants' CPLR § 3211(a)(10) motion to dismiss this action for failure to join Ivana as a purportedly necessary party. See Signature Bank, 142 AD3d at 1070; Matter of People v Christensen, 77 AD3d at 184; Country Vill. Towers Corp., 289 AD2d at 364.

It is well-settled that "[a] motion to dismiss a cause of action pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law." BCI Constr., Inc. v Board of Educ., Washingtonville Cent. Sch. Dist., 203 AD3d 794, 795 (2d Dept 2022). "For the purpose of CPLR 3211(a)(1), judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are [*5]essentially undeniable, would qualify as documentary evidence." Oparaji v ABN Amro Mtge. Group, Inc., 202 AD3d 985, 986-987 (2d Dept 2022).

Regarding a motion to dismiss pursuant to CPLR § 3211(a)(7), it is well-established that "the complaint must be liberally construed, giving the plaintiff the benefit of every favorable inference." Cunningham v Nolte, 188 AD3d 806, 807 (2d Dept 2020), citing Leon v Martinez, 84 NY2d 83, 87-88 (1994). "Such a motion should be granted only where, even viewing the allegations as true, the plaintiff still cannot establish a cause of action." Cunningham, 188 AD3d at 807, citing Hartman v Morganstern, 28 AD3d 423, 424 (2d Dept 2006). "The motion must be denied if from the pleadings' four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law." 511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 (2002).

The Amended Complaint's related first four causes of action are asserted against Angelo, Jaret and Julia, and arise from allegations of misconduct in connection with Lapiano's ownership of real property located in Old Lyme, Connecticut (the "Connecticut Property"). See NYSCEF Doc. No. 18 at ¶¶ 90-123. Specifically, plaintiffs allege that those defendants engaged in bad faith conduct by, inter alia, withdrawing their consent to the sale of the Connecticut Property, using it as leverage to demand an additional 8.4 percent of the net proceeds from the sale thereof, and to demand additional compensation for matters wholly unrelated to the Connecticut Property's sale. Id. They also allege that Angelo improperly contacted the real estate agent for the Connecticut Property and unilaterally demanded that all efforts to sell the property cease. Id.

Without opining as to whether plaintiffs may ultimately prevail on the merits of these four related claims, the Court determines that the Amended Complaint adequately sets forth a first cause of action for breach of fiduciary duty,^[FN3] a second cause of action for breach of the implied covenant of good faith and fair dealing,^[FN4] a third cause of action for injunction,^[FN5] and a [*6]fourth cause of action for breach of fiduciary duty.^[FN6] See NYSCEF Doc. No. 18 at ¶¶ 90-123.

The Court does not credit defendants' contention that these related claims should be dismissed pursuant to CPLR § 3211(a)(1) on the ground that the Operating Agreement relevant to the Connecticut Property allows plaintiffs to sell that property without defendants' consent. Contrary to defendants' assertion, the Operating Agreement requires the consent of "Members holding at least two-thirds of all Company Interests" to sell the Connecticut Property. See NYSCEF Doc. No. 25 at Art. 5.3(f). Given that the Operating Agreement makes clear that defendants' consent is required to reach this two-thirds majority, as Angelo, Jaret and Julia collectively own a 41.66 percent interest in the Connecticut Property, defendants' argument is fatally undercut by the documentary evidence annexed to their motion. See NYSCEF Doc. No. 25 at Ex. C.

Nor does any other purported documentary evidence furnished by defendants require the CPLR § 3211(a)(1) dismissal of these four related claims. The handwritten list of calculations that is annexed to defendants' counsel's affirmation as an ostensible admission by Anna that she owes money to Angelo is wholly unauthenticated and unsubstantiated, and does not serve as documentary evidence that conclusively establishes a defense or disposes of plaintiffs' claims. See NYSCEF Doc. No. 26; see also Palmetto Partners, L.P. v AJW Qualified Partners, LLC, 83 AD3d 804, 806 (2d Dept 2011) (holding that "documentary evidence must resolve all factual issues as a matter of law and conclusively dispose of the plaintiff's claim"). Similarly, defendants' counsel's furnishing of an email from Angelo without any response from Angela does not constitute documentary evidence that conclusively establishes the existence of an oral contract regarding the Connecticut Property, as claimed by defendants. See NYSCEF Doc. No. 27; see also Goldin Real Estate, LLC v Shukla, 227 AD3d 674, 677 (2d Dept 2024) (stating that "the defendants relied upon emails and affidavits, which do not constitute documentary evidence within the meaning of CPLR 3211(a)(1)"); 7 Mansion, LLC v Calvano, 226 AD3d 730, 732 (2d Dept 2024) (noting that "[l]etters, emails, and affidavits are not documentary evidence").

Also without merit is defendants' contention that these four related claims should be dismissed based upon the Statute of Frauds. As noted by plaintiffs, GOL § 5-703 is not an available defense as it may be invoked solely "by the party to be charged, i.e., the party against whom enforcement [of a contract] is sought." Vista Props. v Rockland Ear, Nose & Throat Assoc., P.C., 60 AD3d 846, 847 (2d Dept 2009). Here, the Amended Complaint makes clear that plaintiffs are not seeking to enforce a contract against defendants for the sale of the Connecticut Property, and instead seek damages for, inter alia, defendants' breaches of their fiduciary duties in wrongfully interfering with the sale of that property. See NYSCEF Doc. No. 18 at ¶¶ 90-123. Accordingly, the Statute of Frauds is inapplicable, and the branch of defendants' motion seeking to dismiss the related first four causes of action pursuant to CPLR §§ 3211(a)(1) and/or (7) is denied.

Regarding the fifth cause of action for unjust enrichment against Angelo, Jaret and Julia, [*7]"[t]he elements of a cause of action to recover for unjust enrichment are (1) the defendant was enriched, (2) at the plaintiff's expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered." Travelsavers Enters. v Analog Analytics, Inc., 149 AD3d 1003, 1006 (2d Dept 2017).

Plaintiffs have adequately stated a claim for unjust enrichment. They allege that defendants have been enriched by Rebecca's performance of legal work for the Connecticut Property, including negotiating and drafting leases, reviewing contracts and other legal documents, and preparing legal documents for accountants and lawyers; and that Angelo, Jaret and Julia, who collectively own 41.66 of the Connecticut Property, have unjustly refused to compensate Rebecca for her efforts. See NYSCEF Doc. No. 18 at ¶¶ 124-133. Notwithstanding defendants' procedurally inapposite assertion that plaintiffs have not "substantiated" this claim or supported it with "sufficient evidence", plaintiffs have adequately stated a fifth cause of action for unjust enrichment for purposes of surviving defendants' CPLR § 3211(a)(7) motion. See Porcelli v Key Food Stores Co-Operative, Inc., 44 AD3d 1020, 1021 (2d Dept 2007) (stating that "[w]hether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claim, is irrelevant to the determination of a pre-disclosure CPLR 3211 motion to dismiss"); see also Tutor Perini Bldg. Corp. v Port Auth. of NY & N.J., 191 AD3d 569, 571 (1st Dept 2021) (holding that the Supreme Court properly denied defendant's motion to dismiss plaintiff's unjust enrichment claim where "[t]he complaint adequately alleges the elements of unjust enrichment by pleading . . . that [defendant] was enriched at [plaintiff's] expense and that it is against equity and good conscience to permit [defendant] to retain what is sought to be recovered.").

Plaintiffs have also stated a valid seventh cause of action for breach of contract ^[FN7] and a valid eighth cause of action for unjust enrichment against Angelo, Jaret and Julia for purposes of surviving defendants' CPLR § 3211(a)(7) motion. These related claims arise from the allegation that in December 2021, Anna, Rebecca, Silena and Tania agreed to split ownership of certain real property holdings with Angelo, Jaret and Julia such that each family would own 50 percent of the collective value thereof (the "Split Agreement"). See NYSCEF Doc. No. 18 at ¶¶ 150-155; 156-162. Plaintiffs allege that Angelo, Jaret and Julia agreed to pay $181,000 as consideration for the partial transfer of ownership interests in the Split Agreement, and that the parties also entered into a separate but related oral agreement. Id. The seventh cause of action is grounded in the allegation that Angelo, Jaret and Julia materially breached the Split Agreement by failing to pay the agreed-upon $181,000, while the eighth cause of action alleges that Angelo, Jaret and Julia were unjustly enriched because the value of the buildings they received was collectively greater than 50 percent of the total value of the property at issue. Id.

Again without opining as to whether plaintiffs may ultimately prevail on the merits of either of these related claims, the Court determines that plaintiffs have adequately stated claims for breach of contract and unjust enrichment, such that defendants' CPLR § 3211(a)(7) motion is denied with respect to the seventh and eighth causes of action. See Pinkesz Mut. Holdings, LLC [*8]v Pinkesz, 198 AD3d 693, 697 (2d Dept 2021) (holding that the Supreme Court "properly denied dismissal of [defendant's] cross claim alleging breach of contract . . . which was sufficiently pleaded"); Ahmed Elkoulily, M.D., P.C. v New York State Catholic Healthplan, Inc., 153 AD3d 768, 770-771 (2d Dept 2017) (stating that the Supreme Court erred in dismissing a breach of contract claim pursuant to CPLR § 3211[a][7] where the allegations "were sufficient to state a cause of action to recover damages for breach of contract"); see also City of Long Beach v Agostisi, 221 AD3d 776, 779 (2d Dept 2023) (holding that for purposes of defeating a CPLR § 3211[a][7] motion, plaintiff's allegations "were adequate to state a cause of action sounding in unjust enrichment"); Travelsavers Enters., 149 AD3d at 1006-1007 (finding that plaintiff stated a valid claim for unjust enrichment separate and apart from a breach of contract claim).

Plaintiffs have also stated three additional, distinct claims for unjust enrichment against Angelo, Jaret and Julia. The ninth cause of action is grounded in allegations that those defendants took a disproportionate and unlawful share of distributions from Lapiano in the amount of $376,181. See NYSCEF Doc. No. 18 at ¶¶ 163-167. The tenth cause of action alleges that such defendants unjustly refused and failed to repay $130,000 to plaintiffs arising from a different distribution. Id. at ¶¶ 168-174. And the thirteenth cause of action is based upon the claim that these defendants unlawfully retained a disproportionate percentage of the net proceeds from the sale of real property located in Westminster, Colorado (the "Colorado Property"). Id. at ¶¶ 188-199.

Given that plaintiffs have adequately alleged the requisite elements of unjust enrichment underlying each of these three claims, i.e., that Angelo, Jaret and Julia were enriched by retaining various distributions to which plaintiffs are entitled, and that it is against equity and good conscience to permit them to retain such distributions, the ninth, tenth and thirteenth causes of action will not be dismissed pursuant to CPLR § 3211(a)(7). See City of Long Beach, 221 AD3d at 779; Tutor Perini Bldg. Corp., 191 AD3d at 571; Travelsavers Enters., 149 AD3d at 1006.

The eleventh and twelfth causes of action are asserted solely against Angelo, and concern five properties located in East Hampton, New York that are jointly owned by Anna and Angelo (the "East Hampton Properties"). See NYSCEF Doc. No. 18 at ¶¶ 175-187.

The Court does not credit defendants' assertion that these related claims should be dismissed pursuant to CPLR § 3211(a)(7). In the eleventh cause of action, the Amended Complaint adequately sets forth a claim for breach of fiduciary duty. See NYSCEF Doc. No. 18 at ¶¶ 175-182. It alleges that Angelo and Anna were in a fiduciary relationship in connection with their joint ownership of the East Hampton Properties; that Angelo agreed to manage and maintain those properties and breached his fiduciary duties by, inter alia, neglecting the East Hampton Properties and allowing them to deteriorate into a state of disrepair; and that Anna was forced to spend at least $100,000 to repair damages resulting from Angelo's mismanagement thereof. Id.; see also Matter of Caton, 206 AD3d at 994.

The related twelfth cause of action also sets forth a valid claim for unjust enrichment. See NYSCEF Doc. No. 18 at ¶¶ 183-187. It alleges that Angelo was unjustly enriched at Anna's expense when he falsely claimed that $12,790.16 of his personal expenditures were used for repairs to the East Hampton Properties, and that it is inequitable for Angelo to retain such [*9]monies paid by Anna due to Angelo's misrepresentations regarding the purpose thereof. Id. Because the Amended Complaint has adequately alleged the requisite elements of unjust enrichment underlying this claim, the twelfth cause of action will not be dismissed pursuant to CPLR § 3211(a)(7). See City of Long Beach, 221 AD3d at 779; Tutor Perini Bldg. Corp., 191 AD3d at 571; Travelsavers Enters., 149 AD3d at 1006.

Regarding the sixteenth cause of action for conversion against Angelo, "[t]o establish a cause of action to recover damages for conversion, a plaintiff must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized dominion over the thing in question to the exclusion of the plaintiff's rights." Mohrman v Johns, 210 AD3d 1075, 1076 (2d Dept 2022).

The Court agrees with plaintiffs that they have stated a valid claim for conversion, as the sixteenth cause of action alleges that in December 2022 Angelo unlawfully entered MG's offices and "stole various pieces of office furniture, technology, supplies, and corporate records" belonging to MG and Lapiano, and that Angelo has refused to return same. See NYSCEF Doc. No. 18 at ¶¶ 218-228. As such, notwithstanding Angelo's assertion that Anna granted him permission to take items from MG's offices — which issue of fact will be resolved at a later time in a different procedural context — plaintiffs have adequately stated a conversion claim that will not be dismissed pursuant to CPLR § 3211(a)(7). See Mohrman, 210 AD3d at 1076; Westbury Recycling, Inc. v Westbury Transfer & Recycling, LLC, 209 AD3d 929, 932-933 (2d Dept 2022) (reversing the Supreme Court's CPLR § 3211[a][7] dismissal of a conversion claim where "[t]he plaintiffs adequately alleged that [defendant] was in possession of certain containers to which the plaintiffs had a superior right"); Starr Indem. & Liab. Co. v Global Warranty Group, LLC, 165 AD3d 1308, 1309 (2d Dept 2018) (affirming the Supreme Court's denial of a motion to dismiss where "the complaint adequately stated causes of action alleging conversion").

Accordingly, based upon the foregoing, defendants' motion to dismiss the Amended Complaint pursuant to CPLR §§ 3211(a)(1), (7) and/or (10) is granted to the extent that the sixth cause of action is dismissed pursuant to CPLR § 3211(a)(7), and the motion is otherwise denied.

The foregoing constitutes the decision and order of the Court.^[FN8]