In a December 23, 2010, decision by Justice Fried, the court granted defendants’ motion to dismiss plaintiff’s conversion and civil conspiracy claims based on failure to state a cause of action. Plaintiff, a withdrawing member of defendant-LLC, alleged that defendants failed fully to redeem his membership interest and breached the related redemption agreement and promissory note by paying salaries to defendant-members instead. The court dismissed plaintiff’s conversion claim because he failed specifically to identify and segregate the funds allegedly converted and failed to demonstrate an immediate possessory right over the funds, “which simply represent[ed] damages in contract.” The court also dismissed plaintiff’s civil conspiracy claim as duplicative of his related fraudulent transfer claim, concluding that “a conspiracy to commit a tort is never itself a cause of action.”
Bahiri v Madison Realty Capital Advisors, LLC, Sup Ct, New York County, December 23, 2010, Fried, J., Index No. 650743/09