ADDITIONAL CASESRichard Sapienza, Jr., v. Christopher Mercogliano, a/k/a Christopher Liano; 619314/2016;Christopher Mercogliano, a/k/a Christopher Liano, v. Nailati Holdings, LLC, Richard Sapienza, Jr.; 613443/2018 Prior hereto, on or about June 19, 2017, this Court issued its Short Form Order in the matter found at index number 619314/2016. That Short Form Order adequately sets forth the operative facts in support of each party’s claims and is incorporated.Currently pending before the Court at index number 613443/2018 is Defendant, Richard Sapienza Jr’s., (Sapienza) motion to dismiss. In connection with this Court’s determination it has reviewed the following submissions:1. Defendant’s Notice of Motion, Affirmation In Support by Paul M. O’Brien, inclusive of Exhibits A through E and Memorandum of Law In Support;2. Plaintiff’s Affirmation In Opposition by Barry V. Pittman, Affidavit of Christopher Mercogliano a/k/a Christopher Liano with Exhibit A; and3. Defendant’s Reply Affirmation, inclusive of Exhibits A through F and Reply Memorandum In Further Support.Sapienza claims Plaintiff, Christopher Mercogliano a/k/a Christopher Liano (Mercogliano) is seeking relief that is clearly derivative in nature. The relief sought is an accounting from Defendants, Nailati Holdings LLC and Sapienza. The movant suggests that the action must fail as it is “impermissibly embedded with a derivative claim which, if brought at all, belongs to Nailati.”The test to be applied on a petition to dismiss pursuant to CPLR 3211(a)(7) is “whether, upon examination of the four corners of the pleading, the factual allegations contained in a pleading indicate the existence of any cause of action cognizable at law,” Wachovia Securities, LLC v. Joseph, 2007 WL 419366.Sapienza correctly notes that a cause of action for an accounting must allege that a demand for an accounting was both made and refused prior to the commencement of the litigation. NWM Capital, LLC v. Scharfman, 144 A.D.3d 414(1st Dept., 2003). There is no evidence of Mercogliano’s compliance or a reasonable excuse not to have complied.Sapienza suggests that the Court should dismiss Plaintiffs Complaint because the claim for an accounting is a derivative one inuring to the benefit of the corporate entity, Nailati, not Plaintiff individually. More particularly, movant notes:Here, the harm Plaintiff alleges in the complaint-payments made to Sapienza’s's son from the Nailati-constitute a harm suffered by Nailati, not Mercogliano individually. Indeed, Plaintiff makes no claim apart from those about Nailati’s monies used to make the aforementioned payments for property management services. [See Yudell v. Gilbert, 99 A.D.3d 108 (1st Dept., 2012)].Pursuant to Yudell v. Gilbert, the test to determine whether a cause of action is derivative, requires an examination as to who suffered the harm and who would receive the benefit of the recovery or other remedy. If as alleged by the Plaintiff Nailati funds were impermissibly used, then the amounts allegedly diverted would be returned to Nailati not the Plaintiff individually.It is therefore, the decision of this Court that Sapienza’s application is GRANTED and the Complaint under Index #613443-2018 is DISMISSED. Sapienza’s application for attorneys’ fees and costs is DENIED.Turning to the case found at index number 619314/2016, the Court refers the parties to Civil Practice Law and Rules §2218, Trial of Issue Raised on Motion which reads as follows:The court may order that an issue of fact raised on a motion shall be separately tried by the court or a referee. If the issue is triable of right by jury, the court shall give the parties an opportunity to demand a jury trial of such issue. Failure to make such demand within the time limited by the court, or, if no such time is limited, before trial begins, shall be deemed a waiver of the right to trial by jury. An order under this rule shall specify the issue to be tried.The threshold issue before the Court as set forth in the various actions is a determination of how much money came in — in connection with the sale of the subject properties and how the money was disbursed, and for what purposes. The Court finds that Sapienza has fully complied with the prior “so ordered” discovery stipulation of this Court.1Although the so-called threshold issue is not specifically imbedded in a motion pending before this Court, the Court finds that a framed issue hearing in the nature of a CPLR §2218(a) hearing is in order.2 The parties therefore, will address the issue and present their claims as to entitlement to monies currently held and segregated, the distribution of which is disputed by the parties, as well as evidence of how and to whom monies were disbursed.To that end, the parties shall appear before this Court on Monday, February 4, 2019 at 9:30 a.m. to resolve any outstanding discovery issues (new). Thereafter, the parties shall select a date to proceed to the framed issue hearing as suggested by this Court.The foregoing constitutes the decision and ORDER of the Court.Dated: December 13, 2018
