Nissan Motor Acceptance Corporation v. Five Towns Nissan, LLC et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATIONS : For the foregoing reasons, Judge Lindsays R&R (Docket Entry 28) is ADOPTED in its entirety. Wolfs and Barbagallos motions to dismiss Plaintiffs third cause of action (DocketEntries 15 & 16) are GRANTED. Ad ditionally, because similar reasoning supports dismissal of Plaintiffs money had and received claims against Korchmar, the Court dismisses Plaintiffs third cause of action against him. Accordingly, Plaintiffs money had and received claim is DISMISSED as against Wolf, Barbagallo, and Korchmar. Plaintiff is granted leave to amend its Complaint toassert a contractual claim against them based on a potential judgment against Five Towns on the money had and received claim. Plaintiff shall file its Amended Complaint within thirty (30) days of the date of this Memorandum and Order. Ordered by Judge Joanna Seybert on 2/14/2018. (Bollbach, Jean)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NISSAN MOTOR ACCEPTANCE CORPORATION,
Plaintiff,
MEMORANDUM & ORDER
16-CV-7028(JS)(ARL)

-againstFIVE TOWNS NISSAN, LLC, SHMUEL WOLF,
NEIL BARBAGALLO, and ALEX KORCHMAR,
Defendants.
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APPEARANCES
For Plaintiff:
Louis A. Russo, Esq.
Richard A. Braden, Esq.
Goldberg Segalla LLP
711 Third Avenue
Suite 1900
New York, NY 10017-4013
For Defendants:
Five Towns
Nissan, LLC:

No appearance

Shmuel Wolf

Philip J. Campisi, Jr., Esq.
Westerman Ball Ederer Miller & Sharfstein LLP
170 Old Country Road, Suite 400
Mineola, NY 11501

Neil Barbagallo

James Sawyer, Esq.
Sawyer, Halpern & Demetri
390 North Broadway, Suite 200
Jericho, NY 11753

Alex Korchmar

Vivian Sobers, Esq.
Sobers Law, PLLC
11 Broadway, 6th Floor, Suite 615
New York, NY 10004

SEYBERT, District Judge:
Pending before the Court are: (1) Defendants Shmuel
Wolf’s (“Wolf”) and Neil Barbagallo’s (“Barbagallo”) motions to

dismiss the third claim in Plaintiff Nissan Motor Acceptance
Corporation’s (“Plaintiff”) Complaint (Wolf Mot., Docket Entry 15;
Barbagallo Mot., Docket Entry 16); (2) Magistrate Judge Arlene R.
Lindsay’s Report and Recommendation (“R&R”) recommending that the
Court grant the motion with leave to amend (R&R, Docket Entry 28,
at 1); and (3) Plaintiff’s conditional objection to the R&R
(Objection, Docket Entry 29.) For the following reasons, the Court
ADOPTS Judge Lindsay’s R&R in its entirety.
BACKGROUND
On December 21, 2016, Plaintiff commenced this action
against Five Towns Nissan, LLC (“Five Towns”), Wolf, Barbagallo,
and Alex Korchmar (“Korchmar,” and collectively, “Defendants”)
asserting

three

causes

of

action:

(1)

breach

of

continuing

guarantee agreements by Wolf and Barbagallo; (2) a claim for
attorneys’ fees and costs pursuant to the terms of financing
agreements against Wolf and Barbagallo; and (3) an equitable claim
for money had and received against all Defendants, based on an
accidental overpayment to Five Towns by Plaintiff.

(See generally

Compl., Docket Entry 1.)
On July 17, 2017, Wolf filed a motion to dismiss the
third cause of action alleged in the Complaint, and Barbagallo
filed a motion seeking the same relief on July 18, 2017 (See Wolf
Mot.; Barbagallo Mot.)
referred

the

motions

On October 13, 2017, the undersigned
to

Judge
2

Lindsay

for

a

Report

and

Recommendation on whether they should be granted, and Judge Lindsay
issued her R&R on January 10, 2018.
25; R&R.)
objection

(Referral Order, Docket Entry

On January 24, 2018, Plaintiff filed a conditional
to

the

R&R.

(Objection.)

On

February

2,

2014,

Barbagallo filed a letter asking the Court to adopt Judge Lindsay’s
R&R in its entirety.

(Barbagallo Ltr., Docket Entry 30.)

Wolf,

Korchmar, and Five Towns have not filed responses to Plaintiff’s
conditional objection.
THE R&R
In her R&R, Judge Lindsay recommended that this Court
grant

Wolf’s

and

Barbagallo’s

motions

to

dismiss,

but

grant

Plaintiff leave to amend its Complaint. (R&R at 9.) Judge Lindsay
explained that a claim for money had and received is an equitable,
“quasi-contractual cause of action that will not lie when a
contract

governs

defendant.”

the

relationship

(R&R at 7.)

between

a

plaintiff

and

a

She continued that “the question before

the Court is whether a contract exists that governs Wolf’s and
Barbagallo’s

responsibility

for

that

potential

obligation as guarantors, and the answer is yes.”

financial
(R&R at 8.)

Namely, Wolf’s and Barbagallo’s liability to Plaintiff for the
alleged overpayment to Five Towns would rest on their contractual
liability for “payment of all present and future liabilities of”
Five Towns to Plaintiff, rather than on a direct quasi-contractual
claim against Wolf or Barbagallo.
3

(R&R at 5-6, 8-9.)

Thus, Judge

Lindsay recommended that the Court dismiss the third cause of
action against Wolf and Barbagallo and grant Plaintiff leave to
amend the Complaint to “add an additional contract claim should
such a claim still be viable.”

(R&R at 9.)

Judge Lindsay did

not, however, make any determination with respect to whether a
money had and received claim may be brought against Five Towns.
PLAINTIFF’S CONDITIONAL OBJECTION
Plaintiff conditionally objected to the R&R “[t]o the
extent the Magistrate Judge is recommending that [Plaintiff] may
not proceed with a monies had and received claim against the nonmoving [Five Towns].”

(Objection at 1.)

Plaintiff elaborated:

“To the extent that [Judge Lindsay] is recommending” that Plaintiff
should not be permitted to proceed with its monies had and received
claim against Wolf and Barbagallo, as opposed to “recommending
that

such

a

claim

is

impermissible

against

any

defendant,

including” Five Towns, “then [Plaintiff] does not object to the
R&R (so long as it may amend its complaint to add a fourth claim
against

Defendants

Wolf

and

Barbagallo,

and

non-moving

defendant/guarantor, Alex Korchmar asserting a claim against them
if judgment is recovered against [Five Towns] on Claim III for
monies had and received).”

(Objection at 2-3.)

As discussed above, Judge Lindsay did not rule on the
viability of a money had and received claim against Five Towns,
but only against Wolf and Barbagallo.
4

Additionally, Judge Lindsay

recommended that the undersigned grant Plaintiff leave to amend
its

Complaint

to

assert

a

contractual

claim.

(R&R

at

9.)

Therefore, Plaintiff’s conditional objection is moot and the Court
proceeds as if no objection were filed.
DISCUSSION
In reviewing an R&R, a district court “may accept,
reject,

or

modify,

recommendations

made

in
by

whole
the

or

in

part,

magistrate

the

findings

judge.”

28

and

U.S.C.

§ 636(b)(1)(C). If no timely objections have been made, the “court
need only satisfy itself that there is no clear error on the face
of the record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (internal quotation marks and citation omitted).
Objections were due within fourteen (14) days of service
of the R&R.

The time for filing objections has expired, and as

discussed above, Plaintiff’s conditional objection is moot.
Upon careful review and consideration, the Court finds
Judge Lindsay’s R&R to be comprehensive, well-reasoned, and free
of clear error, and it ADOPTS the R&R in its entirety.
CONCLUSION
For the foregoing reasons, Judge Lindsay’s R&R (Docket
Entry 28) is ADOPTED in its entirety.

Wolf’s and Barbagallo’s

motions to dismiss Plaintiff’s third cause of action (Docket
Entries 15 & 16) are GRANTED.

Additionally, because similar

reasoning supports dismissal of Plaintiff’s money had and received
5

claims against Korchmar, the Court dismisses Plaintiff’s third
cause of action against him.

Accordingly, Plaintiff’s money had

and received claim is DISMISSED as against Wolf, Barbagallo, and
Korchmar.

Plaintiff is granted leave to amend its Complaint to

assert a contractual claim against them based on a potential
judgment against Five Towns on the money had and received claim.
Plaintiff shall file its Amended Complaint within thirty (30) days
of the date of this Memorandum and Order
SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

February
14 , 2018
Central Islip, New York

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