Preview
FILED: NASSAU COUNTY CLERK 08/28/2023 05:49 PM INDEX NO. 608383/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/28/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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RICHARD J. DIGERONIMO and Index No. 608383/2023
R.D. GERONIMO, LTD.,
Plaintiffs-Counterclaim
Defendants,
-against-
PROPERTY ANALYTIX, LLC, ARCHSTONE GROUP
NYC LLC,
Defendants-Counterclaim Plaintiffs,
and
MICHAEL MILLER,
ROYCE ASHTON ROWLES, and RYAN LIN,
Defendants.
--------------------------------------------------------------------------------X
DEFENDANTS-COUNTERCLAIM PLAINTIFFS’ MEMORANDUM OF LAW IN
SUPPORT OF THEIR MOTION TO DISMISS
Attorneys for Defendants-Counterclaim Plaintiffs
Katz Melinger PLLC
Kenneth J. Katz
370 Lexington Avenue, Suite 1512
New York, New York 10017
Telephone: (212) 460-0047
Facsimile: (212) 428-6811
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PRELIMINARY STATEMENT
Defendants-Counterclaim Plaintiffs Property Analytix, LLC (“PA LLC”) and Archstone
Group NYC LLC (“AG NYC LLC”) (collectively, “Moving Defendants”) submit this
Memorandum of Law in support of their motion for an order pursuant to CPLR §3211(1) and (7)
to dismiss the Seventh Cause of Action in the Complaint based on documentary evidence and for
failure to a state a claim, and for such other and further relief as the Court deems just and proper.
FACTS
Plaintiffs Richard J. DiGeronimo and R.D. Geronimo, Ltd. brought suit against Moving
Defendants alleging breaches of certain agreements between Plaintiffs and Moving Defendants.
In the Seventh Cause of Action, Plaintiffs allege that Moving Defendants breached section
1.5.2 and 1.5.3 of the Asset Purchase Agreement (the “APA”) by terminating DiGeronimo’s
employment with Moving Defendants prior to June 30, 2023. Complaint ¶¶ 36, 73, 105-108.
Plaintiffs’ Seventh Cause of Action is based on a misreading of section 1.5.2 of the APA. Contrary
to Plaintiffs’ allegations, section 1.5.2 of the APA, when read on its own or in conjunction with
the immediately preceding and subsequent sections of the agreement, simply did not require
Moving Defendants to employ DiGeronimo for any defined period of time, let alone two (2) years
from the closing of the APA. Rather, section 1.5.2 of the APA states that all operations, including
any current employees who choose to remain employed, would continue under the current business
branding for a period of two (2) years. Exhibit 2, section 1.5.2. This provision contemplates how
to brand the different companies during the transition, and did not require Moving Defendants to
employ DiGeronimo or any other employee for any particular period following the closing of the
APA.
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ARGUMENT
POINT I. THE SEVENTH CAUSE OF ACTION MUST BE DISMISSED
“On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal
construction”. Leon v. Martinez, 84 NY2d 83, 87-88 (1994). “We accept the facts as alleged in the
complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine
only whether the facts as alleged fit within any cognizable legal theory”. Id. A motion to dismiss
pursuant to CPLR 3211(a)(1) on the ground that the action is barred by documentary evidence may
be granted only where the documentary evidence utterly refutes plaintiff's factual allegations,
conclusively establishing a defense as a matter of law. Goshen v. Mutual Life Ins. Co. of New
York, 98 N.Y.2d 314, 326 (2002). “In order for evidence submitted under a CPLR 3211(a)(1)
motion to qualify as ‘documentary evidence,’ it must be ‘unambiguous, authentic, and
undeniable’”. Cives Corp. v. George A. Fuller Co., 948 N.Y.S.2d 658, 659-60 (2d Dep’t 2012)
(noting that documents such as contracts qualify as documentary evidence).
The APA is not an employment contract and did not require Moving Defendants to employ
DiGeronimo for any length of time, let alone for two (2) years. The plain reading of section 1.5.2
of the APA provides that all branding shall continue under the current business for a period of two
(2) years, which included the branding of all operations and all employees who chose to remain
employed with Moving Defendants. No reasonable interpretation of this provision created any
obligation for Moving Defendants to employ DiGeronimo for a defined period of time.
Not only is this the only rational reading of section 1.5.2, but the language of section 1.5.1
further supports this understanding in that it states that DiGeronimo shall “initially” continue the
relationship with RDG’s employees “subject to acceptable performance”.1 Neither section 1.5.1
1
For the purposes of this motion, and without waiving any rights, Moving Defendants will accept that DiGeronimo
was considered an “employee” in accordance with this provision.
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nor 1.5.2 mandate that Moving Defendants employ DiGeronimo until June 30, 2023 or until any
other date. Absent an agreement to the contrary, DiGeronimo was an at-will employee whose
employment was subject to termination at any time. See Smalley v Dreyfus Corp., 853 N.Y.S.2d
270, 272, (2008) (holding “that absent ‘a constitutionally impermissible purpose, a statutory
proscription, or an express limitation in the individual contract of employment, an employer's right
at any time to terminate an employment at will remains unimpaired” … and the employer or the
employee generally may terminate the at-will employment for any reason, or for no reason.” Given
the clear and unambiguous language of the APA, which does not establish any contractual
obligation for Moving Defendants to employ DiGeronimo for any particular length of time, the
Seventh Cause of Action fails to state a claim and must be dismissed. See Rosen v. Vassar College,
135 A.D.2d 248, 251 (3d Dep’t 1988) (finding that an employee whose employment contract
expired was an at-will employee and could not maintain a cause of action for breach of the
employment contract).
CONCLUSION
This motion should be granted in its entirety as demanded in the Notice of Motion.
Dated: New York, New York
August 28, 2023
KATZ MELINGER PLLC
By: /s/ Kenneth J. Katz
Kenneth J. Katz
370 Lexington Avenue, Suite 1512
New York, New York 10017
T: (212) 460-0047
F: (212) 428-6811
kjkatz@katzmelinger.com
Attorneys for Defendants-Counterclaim Plaintiffs
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FILED: NASSAU COUNTY CLERK 08/28/2023 05:49 PM INDEX NO. 608383/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/28/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --------------------------------------------------------------------------------X RICHARD J. DIGERONIMO and Index No. 608383/2023 R.D. GERONIMO, LTD., Plaintiffs-Counterclaim Defendants, -against- PROPERTY ANALYTIX, LLC, ARCHSTONE GROUP NYC LLC, Defendants-Counterclaim Plaintiffs, and MICHAEL MILLER, ROYCE ASHTON ROWLES, and RYAN LIN, Defendants. --------------------------------------------------------------------------------X DEFENDANTS-COUNTERCLAIM PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS Attorneys for Defendants-Counterclaim Plaintiffs Katz Melinger PLLC Kenneth J. Katz 370 Lexington Avenue, Suite 1512 New York, New York 10017 Telephone: (212) 460-0047 Facsimile: (212) 428-6811 1 of 4 FILED: NASSAU COUNTY CLERK 08/28/2023 05:49 PM INDEX NO. 608383/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/28/2023 PRELIMINARY STATEMENT Defendants-Counterclaim Plaintiffs Property Analytix, LLC (“PA LLC”) and Archstone Group NYC LLC (“AG NYC LLC”) (collectively, “Moving Defendants”) submit this Memorandum of Law in support of their motion for an order pursuant to CPLR §3211(1) and (7) to dismiss the Seventh Cause of Action in the Complaint based on documentary evidence and for failure to a state a claim, and for such other and further relief as the Court deems just and proper. FACTS Plaintiffs Richard J. DiGeronimo and R.D. Geronimo, Ltd. brought suit against Moving Defendants alleging breaches of certain agreements between Plaintiffs and Moving Defendants. In the Seventh Cause of Action, Plaintiffs allege that Moving Defendants breached section 1.5.2 and 1.5.3 of the Asset Purchase Agreement (the “APA”) by terminating DiGeronimo’s employment with Moving Defendants prior to June 30, 2023. Complaint ¶¶ 36, 73, 105-108. Plaintiffs’ Seventh Cause of Action is based on a misreading of section 1.5.2 of the APA. Contrary to Plaintiffs’ allegations, section 1.5.2 of the APA, when read on its own or in conjunction with the immediately preceding and subsequent sections of the agreement, simply did not require Moving Defendants to employ DiGeronimo for any defined period of time, let alone two (2) years from the closing of the APA. Rather, section 1.5.2 of the APA states that all operations, including any current employees who choose to remain employed, would continue under the current business branding for a period of two (2) years. Exhibit 2, section 1.5.2. This provision contemplates how to brand the different companies during the transition, and did not require Moving Defendants to employ DiGeronimo or any other employee for any particular period following the closing of the APA. 1 2 of 4 FILED: NASSAU COUNTY CLERK 08/28/2023 05:49 PM INDEX NO. 608383/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/28/2023 ARGUMENT POINT I. THE SEVENTH CAUSE OF ACTION MUST BE DISMISSED “On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction”. Leon v. Martinez, 84 NY2d 83, 87-88 (1994). “We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory”. Id. A motion to dismiss pursuant to CPLR 3211(a)(1) on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law. Goshen v. Mutual Life Ins. Co. of New York, 98 N.Y.2d 314, 326 (2002). “In order for evidence submitted under a CPLR 3211(a)(1) motion to qualify as ‘documentary evidence,’ it must be ‘unambiguous, authentic, and undeniable’”. Cives Corp. v. George A. Fuller Co., 948 N.Y.S.2d 658, 659-60 (2d Dep’t 2012) (noting that documents such as contracts qualify as documentary evidence). The APA is not an employment contract and did not require Moving Defendants to employ DiGeronimo for any length of time, let alone for two (2) years. The plain reading of section 1.5.2 of the APA provides that all branding shall continue under the current business for a period of two (2) years, which included the branding of all operations and all employees who chose to remain employed with Moving Defendants. No reasonable interpretation of this provision created any obligation for Moving Defendants to employ DiGeronimo for a defined period of time. Not only is this the only rational reading of section 1.5.2, but the language of section 1.5.1 further supports this understanding in that it states that DiGeronimo shall “initially” continue the relationship with RDG’s employees “subject to acceptable performance”.1 Neither section 1.5.1 1 For the purposes of this motion, and without waiving any rights, Moving Defendants will accept that DiGeronimo was considered an “employee” in accordance with this provision. 2 3 of 4 FILED: NASSAU COUNTY CLERK 08/28/2023 05:49 PM INDEX NO. 608383/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/28/2023 nor 1.5.2 mandate that Moving Defendants employ DiGeronimo until June 30, 2023 or until any other date. Absent an agreement to the contrary, DiGeronimo was an at-will employee whose employment was subject to termination at any time. See Smalley v Dreyfus Corp., 853 N.Y.S.2d 270, 272, (2008) (holding “that absent ‘a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired” … and the employer or the employee generally may terminate the at-will employment for any reason, or for no reason.” Given the clear and unambiguous language of the APA, which does not establish any contractual obligation for Moving Defendants to employ DiGeronimo for any particular length of time, the Seventh Cause of Action fails to state a claim and must be dismissed. See Rosen v. Vassar College, 135 A.D.2d 248, 251 (3d Dep’t 1988) (finding that an employee whose employment contract expired was an at-will employee and could not maintain a cause of action for breach of the employment contract). CONCLUSION This motion should be granted in its entirety as demanded in the Notice of Motion. Dated: New York, New York August 28, 2023 KATZ MELINGER PLLC By: /s/ Kenneth J. Katz Kenneth J. Katz 370 Lexington Avenue, Suite 1512 New York, New York 10017 T: (212) 460-0047 F: (212) 428-6811 kjkatz@katzmelinger.com Attorneys for Defendants-Counterclaim Plaintiffs 3 4 of 4