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Eisenberg v. Weisbecker

Aiding, Abetting Breach of Fiduciary Duty Claim Dismissed as Duty Arose From Unformed JV

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The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 were read on this motion to/for DISMISS. DECISION ORDER ON MOTION   Defendant Miriam Weisbec ker (“Weisbecker”) moves pursuant to CPLR 3211(a )(1) and (7) to dismiss the verified complaint (the “Complaint”) of plaintiff Michael Eisenberg (“Eisenberg”). This action arises out of a purported joint venture between Eisenberg and nonparty Gerard Rem (“Rem”), who is Weisbecker’s husband. Eisenberg alleges he formed a joint venture with Rem to purchase, renovate, and sell a cooperative apartment 8H located at 205 East 77th Street, New York, NY (the “Apartment”), but that Rem breached his fiduciary duty to Eisenberg, with the assistance of Weisbecker, by perpetrating a scheme to deny him the profits of the joint venture by using a “straw man” purchaser. Eisenberg also commenced an earlier, separate action against Rem, titled Eisenberg v. Rem Index No. 652247/2016 that is before Justice Lebovits. BACKGROUND On October 19, 2012, Eisenberg executed a purported joint venture agreement with Rem wherein Eisenberg advanced $220,000 to secure a 50 percent interest in the joint venture to purchase, renovate and sell the Apartment (the “Agreement”)(Complaint 7, exhibit 1).1 The relevant terms of the Agreement provide that: (1) Eisenberg would advance all principal, (2) Rem and Eisenberg would split the profits evenly, (3) the renovations would cost less than $5,000, (4) Rem would transfer his share of the profits to Eisenberg, if necessary, to ensure that Eisenberg would receive a minimum annual return of 10 percent , and (5) Rem would personally guarantee the return of Eisenberg’s advances and principal in the event the Apartment was sold at a loss (id. at

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