Ingber et al v. Truffelman et al
MEMORANDUM & ORDER re: 10 Defendant Arlene Truffleman's Motion to Dismiss for Failure to State a Claim is DENIED. Ordered by Judge Joanna Seybert on 10/22/2013. (Nohs, Bonnie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JOEL INGBER and DORIS INGBER,
MEMORANDUM & ORDER
BARRY TRUFFLEMAN and ARLENE
Stephen R. Krawitz, Esq.
Stephen R. Krawitz, LLC
271 Madison Avenue, Suite 200
New York, NY 10016
Aaron H. Marks, Esq.
Marissa Ellen Teicher, Esq.
Kasowitz, Benson, Torres & Friedman, LLP
New York, NY 10019
SEYBERT, District Judge:
Plaintiffs Dr. Joel Ingber (“Dr. Ingber”) and Doris
“Plaintiffs”) commenced this action on March 8, 2013 against
Defendants Dr. Barry Truffelman (“Dr. Truffelman”) and Arlene
Truffelman (“Mrs. Truffelman,” and together with Dr. Truffelman,
“Defendants”), seeking damages arising out of an alleged breach
Mrs. Truffelman now moves this Court to dismiss
Plaintiffs’ action against her pursuant to Federal Rule of Civil
Truffelman’s motion is DENIED.
Truffelman, and Dr. Howard Kudler were partners in a New York
(Defs. Br. to Dismiss, Docket Entry 11, at 2).
In 2008, Dr. Kudler commenced an arbitration action against the
other partners in New York State Supreme Court, New York County
(the “Kudler Action 2 ”).
(Compl. ¶ 8.)
In December 2009, Dr.
Joel Ingber, Dr. David Ingber, and Dr. Truffelman entered into a
settlement agreement (the “Settlement Agreement”) which included
a provision that all parties to the Settlement Agreement would
be equally responsible for any liability arising out of the
(Compl. ¶¶ 6-7.)
Ultimately, a Decision, Order,
Action was entered in Supreme Court, New York County against Dr.
Joel Ingber, Dr. David Ingber, and Dr. Truffelman (the “Kudler
(Compl. ¶ 9.)3
The following facts are taken from Plaintiffs’ Complaint and
are presumed to be true for the purposes of this Memorandum and
See Kudler v. Truffelman, Ingber, & Ingber, Case No. 13
Kudler v. Truffelman, Ingber, & Ingber, Index No. 600237/08,
Sup. Ct. N.Y. Cnty. (February 8, 2010).
Plaintiffs allege that they paid the Kudler Judgment
in full, including Dr. Truffelman’s share, but that they have
As such, Plaintiffs assert that Defendants are in
breach of the Settlement Agreement.
In addition, Plaintiffs
allege that Defendants took steps to avoid their obligations
been available to satisfy the Kudler [J]udgment” and that Mrs.
behalf of Dr. Truffelman and Plaintiffs.
(Compl. ¶¶ 12, 20.)
standard on a motion to dismiss before turning to the merits of
Mrs. Truffleman’s motion.
I. Standard of Review
“[t]wo working principles.”
Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v.
Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).
First, although the
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
accord Harris, 572 F.3d at 72.
Iqbal, 556 U.S. at 678;
Second, only complaints that
state a “plausible claim for relief” can survive a Rule 12(b)(6)
motion to dismiss.
Iqbal, 556 U.S. at 679.
a complaint does so is “a context-specific task that requires
Id.; accord Harris, 572 F.3d at 72.
In deciding a motion to dismiss, the Court is confined
to “the allegations contained within the four corners of [the]
Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67,
71 (2d Cir. 1998).
This has been interpreted broadly to include
document on which the Complaint heavily relies, and anything of
Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002) (citations
omitted); Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir.
II. Motion to Dismiss
Mrs. Truffelman moves to dismiss Plaintiffs’ Complaint
against her for failure to state a claim.
because she is holding assets in “constructive trust” for Dr.
Truffleman and Plaintiffs.
(Compl. ¶ 20.)
assert that Dr. Truffleman transferred assets to Mrs. Truffleman
in order to avoid paying the Kudler Judgment.
(Compl. ¶ 12.)
The Court agrees with Plaintiffs that they have stated a claim
against Mrs. Truffleman sufficient to overcome her motion to
Initially, the Court notes that Mrs. Truffleman does
not raise any particular arguments regarding the imposition of a
Plaintiffs’ only claim is for breach of contract and later, in
her reply brief, argues that Plaintiffs have not sufficiently
correct that she was not a signatory to the Settlement Agreement
(see Compl. Ex. A), and therefore is not in privity of contract
with Plaintiffs nor liable under the Settlement Agreement.
Pereira v. Ocwen Loan Servicing, LLC, No. 11-CV-2672, 2012 WL
1381193, at * 3 (E.D.N.Y. Apr. 18, 2012) (In New York, it is
well-settled that a plaintiff “‘may not assert a cause of action
to recover damages for breach of contract against a party with
whom it is not in privity.’” (quoting Yucyco, Ltd. v. Republic
addition, Plaintiffs’ only mention of fraudulent conveyance is
in their opposition brief.
However, Plaintiffs cannot amend
their Complaint through claims raised solely in a brief.
(S.D.N.Y. 2011); see also Fadem v. Ford Motor Co., 352 F. Supp.
2d 501, 516 (S.D.N.Y. 2005), aff’d 157 F. App’x 398 (2d Cir.
solely in their briefs.”).
Neither of those arguments, however, addresses whether
trust against Mrs. Truffleman.
Assuming, arguendo, that Mrs.
Truffleman intends to assert that the existence of a valid and
constructive trust claim, such an argument fails.
“New York law requires that a person establish four
elements before a court will impose a constructive trust: (1) a
confidential or fiduciary relationship; (2) a promise, express
or implied; (3) a transfer of the subject res made in reliance
on that promise; and (4) unjust enrichment.”
United States v.
Coluccio, 51 F.3d 337, 340 (2d Cir. 1995); accord Superintendent
of Ins. v. Ochs (In re First Cent. Fin. Corp.), 377 F.3d 209,
212 (2d Cir. 2004); Fairfield Fin. Mortg. Grop., Inc. v. Luca,
584 F. Supp. 2d 479, 485-86 (E.D.N.Y. 2008).
Assocs., Inc. (In re Koreag), 961 F.2d 341, 352 (2d Cir. 1992)
(quoting Simonds v. Simonds, 45 N.Y.2d 233, 241, 408 N.Y.S.2d
359, 363, 380 N.E.2d 189, 194 (1978)); see also Thaler v. Adler
(In re Adler), 372 B.R. 572, 579 (Bankr. E.D.N.Y. 2007) (stating
conclusive” (alteration in original) (internal quotation marks
and citation omitted)); Cruz v. McAneney, 31 A.D.3d 54, 59, 816
N.Y.S.2d 486, 490 (2d Dep’t 2006) (stating that the “factors
should be applied flexibly”), and “the absence of any one factor
will not itself defeat the imposition of a constructive trust
when otherwise required by equity,” In re Koreag, 961 F.2d at
Thus, neither the absence of any allegations regarding
a fiduciary relationship between Plaintiffs and Mrs. Truffleman
See State Farm Mut. Auto. Ins. Co. v. Cohan,
No. 12-CV-1956(JS)(GRB), 2013 WL 4500730, at *4 (E.D.N.Y. Aug.
20, 2013) (collecting cases).
Rather, the Court here focuses on
the element of unjust enrichment.
See In re First Cent. Fin.
Corp., 377 F.3d at 212 (stating that the “fourth element [of a
enrichment’” (quoting Simonds, 45 N.Y.2d at 242, 408 N.Y.S.2d at
364, 380 N.E.2d at 194)).
enrichment even against a non-party to that agreement,” Hughes
v. BCI Int’l Holdings, Inc., 452 F. Supp. 2d 290, 304 (S.D.N.Y.
2006), the existence of an agreement does not necessarily “bar
the imposition of a constructive trust,” Reale v. Reale, 485 F.
Supp. 2d 247, 253 (W.D.N.Y. 2007).
This is particularly so
where the agreement does not govern the relationship between the
plaintiff and the party against whom the plaintiff seeks to
impose a constructive trust.
See Hughes, 452 F. Supp. 2d at 309
(“[S]ince plaintiffs had no enforceable agreement with any of
the Cunningham Defendants . . . plaintiffs’ constructive trust
claim is not barred.”); Reale, 485 F. Supp. 2d at 253 (“This
line of reasoning is inapplicable in the case at bar because
there is no evidence of a written agreement that governs the
original)); see also DLJ Mortg. Capital, Inc. v. Kontogiannis,
No. 08-CV-4607, 2009 WL 1652253, at *4 (E.D.N.Y. June 4, 2009)
(separately analyzing constructive trust claim against defendant
with which plaintiff had a contract and other defendants).
Here, Plaintiffs have at least arguably alleged that
Mrs. Truffleman secreted assets during the Kudler Action and
that, as such, a breach of contract claim against Dr. Truffleman
may not provide an effective legal remedy. 4
Truffleman’s motion is DENIED.
For the foregoing reasons, Mrs. Truffelman’s motion to
dismiss the Complaint as against her is DENIED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
22 , 2013
Central Islip, NY
Mrs. Truffleman has also argued that a constructive trust claim
against her is premature because Plaintiffs have not shown that
Dr. Truffleman is judgment proof. (Defs. Br. to Dismiss at 2.)
However, “[a]t the pleading stage, [p]laintiff is not required
to guess whether it will be successful on its contract, tort, or
quasi-contract claims.” St. John’s Univ., N.Y., 757 F. Supp. 2d
144, 183 (E.D.N.Y. 2010).
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