Ingber et al v. Truffelman et al
Filing
26
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
---------------------------------------X
JOEL INGBER and DORIS INGBER,
Plaintiffs,
-against-
MEMORANDUM & ORDER
13-CV-1207(JS)(WDW)
BARRY TRUFFLEMAN and ARLENE
TRUFFLEMAN,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Stephen R. Krawitz, Esq.
Stephen R. Krawitz, LLC
271 Madison Avenue, Suite 200
New York, NY 10016
For Defendants:
Aaron H. Marks, Esq.
Marissa Ellen Teicher, Esq.
Kasowitz, Benson, Torres & Friedman, LLP
1633 Broadway
New York, NY 10019
SEYBERT, District Judge:
Plaintiffs Dr. Joel Ingber (“Dr. Ingber”) and Doris
Ingber
(“Mrs.
Ingber,”
and
together
with
Dr.
Ingber,
“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
of contract.
Mrs. Truffelman now moves this Court to dismiss
Plaintiffs’ action against her pursuant to Federal Rule of Civil
Procedure
12(b)(6)
for
failure
to
state
a
claim
upon
which
relief
can
be
granted.
For
the
following
reasons,
Mrs.
Truffelman’s motion is DENIED.
BACKGROUND1
Dr.
Joel
Ingber,
Dr.
David
Ingber,
Dr.
Barry
Truffelman, and Dr. Howard Kudler were partners in a New York
dental practice.
(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
Kudler Action.
and
Judgment
(Compl. ¶¶ 6-7.)
confirming
an
Ultimately, a Decision, Order,
award
arising
out
of
the
Kudler
Action was entered in Supreme Court, New York County against Dr.
Joel Ingber, Dr. David Ingber, and Dr. Truffelman (the “Kudler
Judgment”).
(Compl. ¶ 9.)3
The following facts are taken from Plaintiffs’ Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
1
See Kudler v. Truffelman, Ingber, & Ingber, Case No. 13
18002148 05.
2
Kudler v. Truffelman, Ingber, & Ingber, Index No. 600237/08,
Sup. Ct. N.Y. Cnty. (February 8, 2010).
3
2
Plaintiffs allege that they paid the Kudler Judgment
in full, including Dr. Truffelman’s share, but that they have
not
been
reimbursed
¶¶ 10-11.)
despite
their
written
demands.
(Compl.
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
under
the
Settlement
anticipation
(Compl.
¶¶
Defendants
of
an
Agreement
adverse
12-13).
In
“transferred
by
transferring
outcome
in
particular,
and
secreted
the
Kudler
Plaintiffs
assets
assets
in
Action.
allege
that
would
have
which
been available to satisfy the Kudler [J]udgment” and that Mrs.
Truffelman
has
been
holding
assets
in
behalf of Dr. Truffelman and Plaintiffs.
constructive
trust
on
(Compl. ¶¶ 12, 20.)
DISCUSSION
The
Court
will
first
address
the
applicable
legal
standard on a motion to dismiss before turning to the merits of
Mrs. Truffleman’s motion.
I. Standard of Review
In
Court
deciding
applies
a
Rule
12(b)(6)
“plausibility
“[t]wo working principles.”
motions
standard,”
to
which
dismiss,
is
guided
the
by
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).
Court
must
accept
all
allegations
3
as
First, although the
true,
this
“tenet”
is
“inapplicable
to
legal
conclusions;”
thus,
“[t]hreadbare
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.
Determining whether
a complaint does so is “a context-specific task that requires
the
reviewing
common sense.”
court
to
draw
on
its
judicial
experience
and
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]
complaint.”
Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67,
71 (2d Cir. 1998).
any
document
documents
This has been interpreted broadly to include
attached
to
the
Complaint,
incorporated
in
the
Complaint
any
by
statements
reference,
or
any
document on which the Complaint heavily relies, and anything of
which
judicial
notice
may
be
taken.
See
Chambers
v.
Time
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.
1991).
II. Motion to Dismiss
Mrs. Truffelman moves to dismiss Plaintiffs’ Complaint
against her for failure to state a claim.
that
Mrs.
Truffelman
is
a
proper
4
Plaintiffs contend
defendant
in
this
action
because she is holding assets in “constructive trust” for Dr.
Truffleman and Plaintiffs.
(Compl. ¶ 20.)
Specifically, they
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
dismiss.
Initially, the Court notes that Mrs. Truffleman does
not raise any particular arguments regarding the imposition of a
constructive
trust.
Rather,
her
moving
brief
argues
that
Plaintiffs’ only claim is for breach of contract and later, in
her reply brief, argues that Plaintiffs have not sufficiently
alleged
fraudulent
conveyance.
Mrs.
Truffleman
certainly
is
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.
See
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
of
Slovenia,
984
F.
Supp.
209,
215
(S.D.N.Y.
1997))).
In
addition, Plaintiffs’ only mention of fraudulent conveyance is
in their opposition brief.
However, Plaintiffs cannot amend
5
their Complaint through claims raised solely in a brief.
re
Sanofi-Aventis
Sec.
Litig.,
774
F.
Supp.
2d
See In
549,
562
(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.
2005)
(“It
parties
is
cannot
long-standing
precedent
in
amend
pleadings
through
their
this
circuit
issues
that
raised
solely in their briefs.”).
Neither of those arguments, however, addresses whether
Plaintiffs
have
sufficiently
alleged
trust against Mrs. Truffleman.
a
claim
of
constructive
Assuming, arguendo, that Mrs.
Truffleman intends to assert that the existence of a valid and
binding
contract--i.e.,
the
Settlement
Agreement--precludes
a
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).
factors
doctrine
provide
is
important
equitable
in
guideposts,
nature
6
and
the
“Although these
constructive
should
not
be
trust
‘rigidly
limited,’”
Koreag,
Controle
et
Revision
S.A.
v.
Refco
F/X
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
that
“the
four
elements
of
[constructive
trust]
are
not
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
353.
Thus, neither the absence of any allegations regarding
a fiduciary relationship between Plaintiffs and Mrs. Truffleman
nor
failure
to
plead
Plaintiffs’ claim.
a
promise
and
reliance
are
fatal
to
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
constructive
purpose
of
trust
the
claim]
is
constructive
the
trust
7
most
is
important
prevention
since
of
‘the
unjust
enrichment’” (quoting Simonds, 45 N.Y.2d at 242, 408 N.Y.S.2d at
364, 380 N.E.2d at 194)).
While
valid
written
it
is
true
agreement
that
may
“[i]n
preclude
some
a
circumstances,
claim
for
a
unjust
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
conduct
of
plaintiffs
vis-à-vis
defendants.”
(emphasis
in
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
8
that, as such, a breach of contract claim against Dr. Truffleman
may not provide an effective legal remedy. 4
Accordingly, Mrs.
Truffleman’s motion is DENIED.
CONCLUSION
For the foregoing reasons, Mrs. Truffelman’s motion to
dismiss the Complaint as against her is DENIED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
October
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).
4
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