July 2, 2015.
130 A.D.3d 413
Supreme Court, Appellate Division, First Department, New York.
Glen LAU, M.D., et al., Plaintiffs–Respondents,
Terry LAZAR, et al., Defendants–Appellants.
July 2, 2015.
Background: Physicians brought action against accountant and his companies, alleging, inter alia, claims for tortious interference and unjust enrichment. Accountant moved to dismiss. The Supreme Court, New York County, Shirley Werner Kornreich, J., 2014 WL 5178662, granted motion in part and denied motion in part. Accountant appealed.
Holdings: The Supreme Court, Appellate Division, held that:
1 physicians failed to state claim against accountant for tortious interference with the parties’ letter of intent, and
2 physicians stated unjust enrichment causes of action against accountant and his companies.
Affirmed as modified.
Attorneys and Law Firms
**56 Steven G. Legum, Mineola, for appellants.
Advocates for Justice, Chartered Attorneys, New York (Richard Soto of counsel), for respondents.
*413 Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered October 14, 2014, which, insofar as appealed from, denied defendants’ motion to dismiss the first though nineteenth and the twenty-fourth through twenty-eighth **57causes of action, unanimously modified, on the law, to grant the motion as to the fourth, fifth, sixth, and seventeenth causes of action, and otherwise affirmed, without costs.
12The fourth cause of action, which alleges tortious interference with the parties’ letter of intent, should be dismissed because plaintiffs do not allege “the existence of a valid contract between [themselves] and a third party” (see Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 424, 646 N.Y.S.2d 76, 668 N.E.2d 1370  ). Nevertheless, the three remaining tortious interference claims are properly pleaded because the complaint specifically alleges “that the acts of the defendant corporate officer[ ] which resulted in the tortious interference with contract … were beyond the scope *414 of [his] employment” (Petkanas v. Kooyman, 303 A.D.2d 303, 305, 759 N.Y.S.2d 1 [1st Dept.2003] ) and were done for malicious and wrongful purposes (see Bonanni v. Straight Arrow Publs., 133 A.D.2d 585, 586–587, 520 N.Y.S.2d 7 [1st Dept.1987]; see also Algomod Tech. Corp. v. Price, 65 A.D.3d 974, 975, 886 N.Y.S.2d 120 [1st Dept.2009], lv. denied 14 N.Y.3d 707, 2010 WL 1707353  ).
The fifth and sixth causes of action, which allege that the other member of the surgical center breached the operating agreement, should be dismissed because “[a] member of a limited liability company cannot be held liable for the company’s obligations by virtue of his [or her] status as a member thereof” (Matias v. Mondo Props. LLC, 43 A.D.3d 367, 367–368, 841 N.Y.S.2d 279 [1st Dept.2007] [internal quotation marks omitted]; Limited Liability Company Law §§ 609; 610).
34The unjust enrichment causes of action predicated on the informal loans made by plaintiffs to several of the defendants are adequately pleaded because “[w]here one party misappropriates property from another and uses that property to pay a debt to a third party, an action for unjust enrichment may lie against the party who ultimately received the money” (Trade Expo Inc. v. Bancorp, 2014 N.Y. Slip Op. 32408(U), *2, 2014 WL 4634989 [Sup.Ct N.Y. County 2014], citing 3105 Grand Corp. v. City of New York, 288 N.Y. 178, 42 N.E.2d 475 ; Carriafielio–Diehl & Assoc., Inc. v. D & M Elec. Contr., Inc., 12 A.D.3d 478, 784 N.Y.S.2d 617 [2d Dept.2004] ).
The seventeenth cause of action, which alleges that the surgical center was unjustly enriched by capital improvements made by plaintiffs, should be dismissed because of the existence of an express agreement covering those capital improvements (see Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790–791, 944 N.Y.S.2d 732, 967 N.E.2d 1177  ).
We have considered defendants’ remaining arguments as to the sufficiency of the pleadings and find them unavailing.
We reject defendants’ contention that the motion court demonstrated bias against them warranting assignment of the case to a different Justice.
130 A.D.3d 413, 13 N.Y.S.3d 56, 2015 N.Y. Slip Op. 05770