Doyle v. Icon, LLC , 24 N.Y.S.3d 602 ( 2016 )

Doyle v Icon, LLC (2016 NY Slip Op 00584)

Doyle v Icon, LLC

2016 NY Slip Op 00584

Decided on January 28, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 28, 2016
Mazzarelli, J.P., Acosta, Andrias, Richter, JJ.

38 602832/09

[*1]Keith Doyle, Plaintiff-Appellant,

v

Icon, LLC doing business as "R Bar," et al., Defendants-Respondents.

Cooper & McCann, LLP, New Rochelle (Gary G. Cooper of counsel), for appellant.

Bracewell & Giuliani LLP, New York (Kelly Koscuiszka of counsel), for respondents.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered on or about December 19, 2014, which, to the extent appealed from, denied plaintiff's motion for summary judgment as to liability on his claims for conversion and unjust enrichment, unanimously affirmed, without costs.

Triable issues of fact as to the nature of plaintiff's interest in defendant Icon, LLC, if any, at the relevant time preclude summary judgment in his favor on his causes of action for conversion and unjust enrichment (see Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 49-50 [2006]; Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011]).

Contrary to plaintiff's contention, the Limited Liability Company Law, to which Icon is subject in the absence of a written operating agreement (see Matter of Eight of Swords, LLC, 96 AD3d 839 [2d Dept 2012]), does not preclude the members of an informally operated limited liability company from unanimously agreeing upon a course of conduct when faced with extensive losses. Unlike in Mizrahi v Cohen (104 AD3d 917, 920 [2d Dept 2013], lv dismissed 21 NY3d 968 [2013]), upon which plaintiff relies, the record does not establish that the parties intended to treat defendant Sean Cunningham's infusion of capital as a loan. To the contrary, the individual defendants testified that, at a capital call meeting held in April 2006, plaintiff voluntarily withdrew from or abandoned his interest in Icon.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 28, 2016

CLERK