ADDITIONAL CASES John D. Wright and Carol McLean-Wright, Plaintiffs v. Stony Creek Operating Co., LLC and 1000 Acres Holding, LLC, Defendants; EF2020-68472 DECISION AND ORDER 1000 Acres Ranch Resort, Inc. (hereinafter 1000 Acres) is a horseback riding ranch and resort located in the Town of Stony Creek, Warren County. Carol McLean-Wright and her husband, John D. Wright (hereinafter collectively referred to as plaintiffs), resided at 1000 Acres from March 2016 to approximately July 2019, and Scott McLean — Carol McLean-Wright’s son — was the manager from May 2016 to October 2019. According to plaintiffs, “[d]uring the approximate period May of 2016 to September of 2019, [they] materially assisted Scott McLean in managing the [r]anch.” In October 2019, Brandon Williams became the manager of 1000 Acres. Plaintiffs allege that “[w]hile residing at the [r]anch[, they] resided [in] a series of rooms and cabins which were unsuitable for renting to guests. Once renovated, the rooms were returned to the rental pool and [they] were moved to another location. In May 2018 they were again moved to the former retail gold store located on the [r]anch…which was commonly known as the Golf Pro Shop.” Plaintiffs further allege as follows: “While residing at the Golf Pro Shop, [they] accumulated and stored personal property there. “When Plaintiffs moved from the Golf Pro Shop in or about September of 2019, they requested and received permission from 1000 Acres to temporarily store their personal property at the Golf Pro Shop. “While residing at the Ranch during the approximate period March 2016 to September…2019, Plaintiffs rented five units from 4 Seasons Storage [& Rentals, LLC (hereinafter 4 Seasons)], numbered 155, 156, 172, 203 and 204 under their own names and not affiliated with 1000 Acres. 1000 Acres was NOT the owner or lessee of these 5 units nor was 1000 Acres the owner of the contents of those units. 1000 Acres rented two units (#157 and #170) for storage of their surplus ranch mattresses and kitchen-ware.” According to plaintiffs, personal belongings — which they refer to as “personalty” — were stored in the Golf Pro Shop while scientific equipment was stored in the 4 Seasons storage units. In this regard, plaintiffs’ allege that “John D. Wright holds a PhD in Public Health from UCLA, with a Post Doctorate in Neuro-Virology from Yale, served as the United Nations’ Inspector for Agents of Biological Destruction in Iraq, was a Lieutenant Colonel in the Army retiring after 37 years in 2016, was a U.S. employee specializing in infectious diseases and biological weapons, and…has expertise with electron and scanning microscopes. The value, sensitively and specialized nature of much of the Equipment is consistent with this expertise.” Plaintiffs claim that during October of 2019, Williams and 1000 Acres took physical possession of their personalty at the Golf Pro Shop, as well as the equipment in the 4 Seasons storage units, and have refused to return it. Plaintiffs further claim that “[d]uring the time [they] assisted in managing [1000 Acres] they continually advanced funds for the [ranch, and] 1000 Acres agree to fully reimburse [those] funds,” but it now refuses to do so. On October 29, 2019, when Carol McLean-Wright attempted to speak with Williams, he allegedly “said and published in a loud voice before and overheard by others that [she] ‘had stolen money and items from the ranch’.” He then made a similar statement to Carol McLean-Wright on October 30, 2019, “sa[ying] and publish[ing] in a loud voice directed to [her] ‘[y]ou’ve already taken all the money, what difference does it make?” On September 18, 2020, plaintiffs commenced an action against Williams, 1000 Acres and 4 Seasons (hereinafter action No. 1), alleging 15 causes of action: (1) Intentional conversion of personalty against Williams, with actual damages; (2) Intentional conversion of personalty against Williams, with exemplary and punitive damages; (3) negligent conversion of personalty against Williams, with actual damages; (4) intentional conversion of personalty against 1000 Acres, with actual damages; (5) negligent conversion of personalty against 1000 Acres, with actual damages; (6) breach of contract against 1000 Acres, with actual damages; (7) intentional conversion of equipment against Williams, with actual damages; (8) intentional conversion of equipment against Williams, with exemplary and punitive damages; (9) negligent conversion of equipment against Williams, with actual damages; (10) intentional conversion of equipment against 1000 Acres, with actual damages; (11) negligent conversion of equipment against 1000 Acres, with actual damages; (12) defamation against Williams; (13) unjust enrichment against Williams; (14) unjust enrichment against 1000 Acres; and (15) negligence against 4 Seasons. On November 4, 2020, Williams and 1000 Acres filed a pre-answer motion seeking to dismiss the first, second, third, seventh, eighth, ninth and twelfth causes of action. 4 Seasons filed its answer on November 19, 2020 and, on November 30, 2020 plaintiffs filed an amended complaint. Williams and 1000 Acres then filed a pre-answer motion seeking to strike the amended complaint or, alternatively, to dismiss the first, second, third, seventh, eighth, ninth and twelfth causes of action. Meanwhile, on November 20, 2020 plaintiffs commenced an action against several entities with an alleged ownership interest in 1000 Acres, namely Stony Creek Operating Co., LLC, 1000 Acres Holdings LLC, Shab Holdings, LLC and Damis Holdings, LLC (hereinafter action No. 2), alleging five causes of action: (1) Intentional conversion of personalty; (2) negligent conversion of personalty; (3) breach of contract; (4) intentional conversion of equipment; and (5) unjust enrichment. Plaintiffs then filed an amended complaint on January 12, 2021, removing Shab Holdings and Damis Holdings from the caption. Defendants then filed a pre-answer motion to dismiss the amended complaint on January 29, 2021. The motions in action Nos. 1 and 2 are addressed ad seriatim. Turning first to the motion to dismiss the complaint filed by Williams and 1000 Acres in action No. 1, these defendants contend that the first, second, third, seventh, eighth and ninth causes of action — all of which allege conversion against Williams — must be dismissed for failure to state a cause of action (see CPLR 3211 [a] [7]). “[T]he standard to be applied on a motion [of this type] is both familiar and well settled — ‘[the Court] must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts alleged fit within any cognizable legal theory’” (Rodriguez v. Jacoby & Meyers, LLP, 126 AD3d 1183, 1185 [2015], lv denied 25 NY3d 112 [2015], quoting He v. Realty USA, 121 AD3d 1336, 1339 [2014] [internal quotation marks and citation omitted]; see Torrance Constr., Inc. v. Jaques, 127 AD3d 1261, 1263 [2015]; Snyder v. Brown Chiari, LLP, 116 AD3d 1116, 1117 [2014]). “‘Conversion is an unauthorized exercise of dominion and control over’ someone else’s property that ‘interferes with and is in defiance of the superior possessory right of the owner or another person’” (Torrance Constr., Inc. v. Jaques, 127 AD3d at 1263, quoting Miller v. Marchuska, 31 AD3d 949, 950 [2006] [citations omitted]). To state a claim for conversion, a plaintiff must show (1) legal ownership or an immediate right of possession in a specific identifiable thing; and (2) defendants’ unauthorized dominion over the thing in question to the exclusion of the plaintiff” (see Giardini v. Settanni, 159 AD3d 874, 875 [2018]; Mackey Reed Elec., Inc. v. Morrone & Assoc., P.C., 125 AD3d 822, 823 [2015]). Plaintiffs’ complaint — which includes an exhaustive list of the personalty allegedly taken from the Golf Pro Shop, as well as the equipment allegedly taken from the storage units — succeeds in stating a cause of action for conversion. Indeed, plaintiffs’ allegations appear to demonstrate an immediate right of possession in specific identifiable things. While Williams and 1000 Acres contend that “[p]laintiffs do not specify the precise dates on which [the] alleged conversion took place, and provide absolutely no detail or explanation as to why and in what manner [it] occurred,” such information is not necessary to survive a motion to dismiss for failure to state a cause of action. Indeed, with no discovery having been conducted it is uncertain how plaintiffs could have access to that information. Briefly, to the extent that the tort of conversion must be intentional (see Colavito v. New York Organ Donor Network, Inc., 8 NY3d 43, 49-50 [2006]), plaintiffs cannot succeed in demonstrating negligent conversion of their property — as alleged against Williams in the third and ninth causes of action.1 That being said, the allegations may state a cause of action for negligent destruction of property (see Pollard v. State of New York, 173 AD2d 906, 907 [1991]; cf. Katz v. Town of Clarkstown, N.Y., 120 AD3d 632, 633 [2014]). Given the standard applicable to a motion to dismiss, plaintiffs shall be permitted to proceed with these causes of action — at least at this juncture (see Rodriguez v. Jacoby & Meyers, LLP, 126 AD3d at 1185; He v. Realty USA, 121 AD3d at 1339). Defendants next contend that the twelfth cause of action — alleging defamation against Williams — must be dismissed for failure to state a cause of action (see CPLR 3211 [a] [7]). “[O]n a motion to dismiss pursuant to CPLR 3211 (a) (7) [the Court] consider[s] only ‘whether any reading of the complaint supports the defamation claim’” (Trump Vil. Section 4, Inc. v. Bezvoleva, 161 AD3d 916, 917 [2018], quoting Davis v. Boeheim, 24 NY3d 262, 272 [2014]; see Silsdorf v. Levine, 59 NY2d 8, 12 [1983]). “‘Whether a plaintiff can ultimately establish its allegations is not part of the calculus’” (Trump Vil. Section 4, Inc. v. Bezvoleva, 161 AD3d at 917, quoting EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). The Court finds that plaintiffs’ complaint succeeds in stating a claim for defamation. “[D]efamation requires proof that the defendant made ‘a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se’” (Dickson v. Slezak, 73 AD3d 1249, 1250 [2010], quoting Roche v. Claverack Coop. Ins. Co., 59 AD3d 914, 916 [2009]). Plaintiffs’ amended complaint alleges that Williams made and published false statements on October 29 and 30, 2019 that these statements were made before several staff members and that “[t]he statements caused special harm to…Carol Wright and constituted defamation per se.” While Williams and 1000 Acres contend that the complaint must be dismissed “[b]ecause the specific individuals who would have heard the alleged slander are not identified”, this contention is without merit. The third party to whom the statement was allegedly made need not be named in the pleadings. Additionally, although it is unclear how plaintiffs will ultimately prove special harm and defamation per se, that is not part of the calculus at this time. Based upon the foregoing discussion Williams and 1000 Acres’ motion to dismiss the first, second, third, seventh, eighth, ninth and twelfth causes of action in action No. 1 is denied in its entirety. Turning now to the second motion filed by Williams and 1000 Acres in action No. 1, these defendants first contend that the amended complaint — filed without leave of Court — must be struck as untimely. CPLR 3025 (a) provides that “[a] party may amend his pleading once without leave of court within [20] days after its service, or at any time before the period for responding to it expires, or within [20] days after service of a pleading responding to it.” With 4 Seasons answer filed on November 19, 2020, the amended complaint — filed on November 30, 2020 — is certainly timely. Based upon the discussion set forth above — the first, second, third, seventh, eighth, ninth and twelfth causes of action shall not be dismissed for failure to state a claim. In this regard, it is observed that the amendments to the complaint were largely in response to Williams and 1000 Acres’ initial motion to dismiss, with plaintiffs including a motive for the alleged conversion and identifying the third-parties who heard the alleged defamatory statements. Based upon the foregoing, Williams and 1000 Acres’ motion to strike the amended complaint in action No. 1 or, alternatively, to dismiss the first, second, third, seventh, eighth, ninth and twelfth causes of action in the amended complaint is denied in its entirety. Turning now to defendants’ motion to dismiss the amended complaint in action No. 2, defendants once again contend that the amended complaint must be dismissed based upon plaintiffs’ failure to state a cause of action. In this regard, it is noted that the allegations in action No. 2 largely mirror those made in action No. 1. Based upon the discussion set forth above — the first, second and fourth causes of action alleging conversion shall not be dismissed for failure to state a claim. Similarly, plaintiffs’ claims for breach of contract and unjust enrichment likewise shall not be dismissed. Plaintiffs have succeeded in stating causes of action (see Trenholm-Owens v. City of Yonkers, 197 AD3d 521, 524 [2021]; Magee-Boyle v. Reliastar Life Ins. Co. of N.Y., 173 AD3d 1157, 1159 [2019]). Indeed, the vast majority of defendants’ arguments center around plaintiffs’ inability to prove their case — but plaintiffs do not need to prove their case at this juncture. As noted above, discovery has not yet been exchanged nor depositions held, so plaintiffs cannot be expected to prove their case yet. Defendants’ motion to dismiss the amended complaint in action No. 2 is denied in its entirety. Therefore, having considered NYSCEF documents Nos. 10, 11, 14, 15, 16, 25 — 28, 29, 30 & 31 in action No. 1 and NYSCEF documents Nos. 9 — 20, 22 — 29 & 30 in action No. 2, and oral argument having been heard virtually on October 19, 2021 with Chester P. Lustgarten Esq. appearing on behalf of defendants Brandon Williams and 1000 Acres in action No. 1 and defendants in action No. 2, and Thomas W. Petersen Esq. appearing on behalf of plaintiffs in actions No. 1 & 2, it is hereby ORDERED that defendants’ motion in action No. 1 to dismiss the first, second, third, seventh, eighth, ninth and twelfth causes of action is denied, and it is further ORDERED that defendants’ motion in action No. 1 to strike the amended complaint or, alternatively, to dismiss the first, second, third, seventh, eighth, ninth and twelfth causes of action in the amended complaint is denied, and it is further ORDERED that defendants’ motion in action No. 2 to dismiss the amended complaint is denied and it is further, ORDERED that counsel for the parties shall appear for a conference on December 1, 2021 at 10:00 a.m. with the conference to be conducted virtually using Microsoft Teams; and it is further ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied. The original of this Decision and Order has been e-filed by the Court. Counsel for plaintiffs is hereby directed to promptly obtain a copy of the e-filed Decision and Order for service with notice of entry upon defendants in accordance with CPLR 5513. Dated: October 26, 2021
