Daskal Ex Rel. 333-345 Green LLC v. Tyrnauer , 998 N.Y.S.2d 412 ( 2014 )

Daskal v Tyrnauer (2014 NY Slip Op 08393)

Daskal v Tyrnauer

2014 NY Slip Op 08393

Decided on December 3, 2014

Appellate Division, Second 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 December 3, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
PETER B. SKELOS
THOMAS A. DICKERSON
L. PRISCILLA HALL, JJ.

2013-00523
(Index No. 500734/11)

[*1]Martin Daskal, etc., appellant,

v

Joseph Tyrnauer, also known as Volvi Tyrnauer, et al., respondents.

Korsinsky & Klein, LLP, Brooklyn, N.Y. (Joseph P. Garland, Michael Korsinsky, and Rebecca Lebowitz of counsel), for appellant.

Goldberg & Rimberg PLLC, New York, N.Y. (Joel S. Schneck and Mindy Kallus of counsel), for respondents Joseph Tyrnauer, also known as Volvi Tyrnauer, WNT Construction Corp., WTC Development Corp., WTC Construction Co., Inc., WTC Management Inc., Home@Greene NY, Inc., WT Development Corp., WT Construction Corp., and 101-115 Spring Garden St., LLC.

Roger Bennet Adler, P.C., New York, N.Y., for respondent Elie Staub.

Fishkin Lucks LLP, New York, N.Y. (Steven M. Lucks and Glen A. Sproviero of counsel), for respondents Banco Popular North America and Gregory Miedrzynski.

DECISION & ORDER

In an action, inter alia, to recover damages for violations of the Racketeer Influenced and Corrupt Organizations Act (18 USC § 1962[c], [d]), the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Demarest, J.), dated October 22, 2012, as granted those branches of the motion of the defendants Joseph Tyrnauer, also known as Volvi Tyrnauer, WNT Construction Corp., WTC Development Corp., WTC Construction Co., Inc., WTC Management Inc., Home@Greene NY, Inc., WT Development Corp., WT Construction Corp., and 101-115 Spring Garden St., LLC, the separate motion of the defendant Elie Staub, and the separate motion of the defendants Banco Popular North America and Gregory Miedrzynski which were pursuant to CPLR 3211(a)(7) to dismiss the first and second causes of action insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the defendants appearing separately and filing separate briefs.

The Supreme Court properly concluded that the plaintiff failed to state a cause of action to recover damages for violation of the Racketeer Influenced and Corrupt Organizations Act (18 USC § 1962[c]; hereinafter RICO) (see 18 USC §§ 1961, 1962[c]; H. J. Inc. v Northwestern Bell Telephone Co., 492 US 229; Sedima, S.P.R.L. v Imrex Co., Inc., 473 US 479; Greenstone/Fontana Corp. v Feldstein, 72 AD3d 890, 894-895). Further, the plaintiff's failure to state a cause of action pursuant to 18 USC § 1962(c) also warrants the conclusion that the plaintiff failed to state a cause of action pursuant to 18 USC § 1962(d), alleging a RICO conspiracy (see Grafstein v Schwartz, 78 AD3d 772, 773; Greenstone/Fontana Corp. v Feldstein, 72 AD3d at 894-895).

Accordingly, the Supreme Court properly granted those branches of the of the motion of the defendants Joseph Tyrnauer, also known as Volvi Tyrnauer, WNT Construction Corp., WTC Development Corp., WTC Construction Co., Inc., WTC Management Inc., Home@Greene NY, Inc., WT Development Corp., WT Construction Corp., and 101-115 Spring Garden St., LLC, the separate motion of the defendant Elie Staub, and the separate motion of the defendants Banco Popular North America and Gregory Miedrzynski which were to dismiss the first and second causes of action insofar as asserted against each of them.

RIVERA, J.P., SKELOS, DICKERSON and HALL, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court