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USA United Holdings, Inc. v. Tse-Peo, Inc.

Supreme Court of the State of New York, Kings County
Apr 23, 2009
2009 N.Y. Slip Op. 50775 (N.Y. Misc. 2009)

Opinion

9909/08.

Decided April 23, 2009.

Anthony J. Cincotta, Esq., Shrewsbury, NJ, Paul S. Doherty, Esq., Hartman, Doherty, Rosa Berman, LLC, New York, NY, Attorneys for Plaintiff.

Noah Weissman, Esq., Bryan Cave, LLP, New York, NY, Attorney for Defendant.


Plaintiff USA United Holdings, Inc. (plaintiff) alleges breach of contract, breach of fiduciary duty, and conversion claims against defendants Tse-Peo, Inc., United Tse-Peo, LLC, a/k/a Tse-Peo, Inc., a/k/a Tri-State (collectively, the Tse-Peo defendants) and Robert Cassera (Cassera), as president of these companies and in his individual capacity (collectively, defendants) move, pursuant to CPLR 3211 (a) (1) and (7), to dismiss plaintiff's complaint as against it.

While defendants' motion is not brought, pursuant to CPLR 3211 (a)(5), defendants' arguments and plaintiff's response to their arguments are based upon a Statute of Limitations defense. As such, the court will, in the interests of judicial economy, overlook this technical defect ( see CPLR 2001).

Since the court, at oral argument, granted plaintiff's cross motion, pursuant to CPLR 3025 (b), for leave to amend its first amended complaint, defendants' motion to dismiss will be addressed with respect to plaintiff's second amended complaint (which supersedes plaintiff's first amended complaint ( see 49 W. Tenants Corp v Seidenberg , 6 AD3d 243 , 243 [2004]; Livadiotakis v Tzitzikalakis, 302 AD2d 369, 370 [2003]; Sage Realty Corp. v Proskauer Rose, 251 AD2d 35, 38 [1998]; Sholom Zuckerbrot Realty corp. v Coldwell Bank Commercial Group, 138 Misc 2d 799, 801 [1988]).

BACKGROUND

Plaintiff operates a bus company providing service to, among others, the New York City public school system. On June 17, 2004, plaintiff entered into a client service agreement (with attached terms and conditions) (the contract), with United Tse-Peo, LLC, wherein United Tse-Peo, LLC was to, among other things, calculate, collect, and submit employment taxes and filings due. As set forth in the contract, United Tse-Peo, LLC was directly responsible for the payment of wages and other compensation to the plaintiff's employees, and was required to deduct and remit to the proper taxing authorities all local, state, and federal taxes and forms which employers were legally required to submit. Plaintiff paid a service fee to United Tse-Peo, LLC for its services, which was expressed as a percentage applied to the sum total of the gross wages paid by United Tse-Peo, LLC. Thus, under the contract, United Tse-Peo, LLC would collect and advance certain payroll taxes on plaintiff's behalf, and then provide plaintiff with an invoice that included a reimbursement request for the taxes paid on plaintiff's behalf and its service fee.

The billing rate charged by United Tse-Peo, LLC to plaintiff included the following expenses which United Tse-Peo, LLC was required to pay on plaintiff's behalf: (1) Social Security tax and Medicaid, (2) federal unemployment insurance tax, (3) state unemployment insurance tax, (4) disability insurance tax, if required by State law, (5) any other employee, employer, or payroll tax, which plaintiff was legally required to pay, (6) workers' compensation insurance, and (7) United Tse-Peo, LLC's administrative fees. United Tse-Peo, LLC issued paychecks to plaintiff's employees through its own bank accounts, deducted the money directly from the employees' paychecks, and utilized its own checking accounts to collect and pay the taxes. United Tse-Peo, LLC then billed plaintiff for the amounts, and plaintiff paid all accounts billed. United Tse-Peo, LLC thus financed the payroll by providing a three-week payroll float, for which it received a fee. Although, pursuant to the contract, United Tse-Peo, LLC was required to submit taxes on plaintiff's behalf and was paid a fee, including a fee for the advancement of monies, if required, to pay the taxes, plaintiff claims that during the course of its relationship with United Tse-Peo, LLC, United Tse Peo, LLC failed to remit all required taxes, correctly calculate its tax liability, and submit all required tax forms.

While plaintiff's contract was with United Tse-Peo, LLC, plaintiff asserts that the Tse-Peo defendants failed to maintain separate corporate formalities over the years in their dealings with it and the other companies (in which plaintiff's owner had an interest) for which they performed services. Plaintiff claims that Cassera, who is an owner and officer of United Tse-Peo, LLC, has operated the same business of United Tse-Peo, LLC under various other corporate entity names (i.e., the Tse-Peo defendants). Plaintiff alleged that the Tse-Peo defendants are controlled by Cassera, who is an officer and owner of all of them, they are mere instrumentalities and alter egos of Cassera, they all operate at the same location, and all share employees, officers, owners, and bank accounts. Plaintiff maintains that all of the Tse-Peo defendants, as alter egos of Cassera, and Cassera, personally, are responsible for the failure to remit the correct taxes and filings on its behalf.

Among the required taxes allegedly underpaid were unemployment taxes owed to the New York State Department of Labor (NYSDOL) for 2005. The NYSDOL claims that plaintiff owes $508,704.31 for the four quarters of 2005, including interest and penalties, plus additional interest penalties based upon the insufficient payment of taxes for the year 2005 in the amount of $87,371.11, as of September 14, 2007. These taxes are owed to the NYSDOL due to plaintiff's payment at a tax rate of 4.1% when it was required to pay a 9.9% tax rate; the NYSDOL has charged plaintiff with this increased rate.

Plaintiff claims that this rate increase in its 2005 taxes was caused by the Tse-Peo defendants because they engaged in a practice known as "dumping." Plaintiff asserts that under this practice of "dumping," the Tse-Peo defendants "dumped" their own unemployment obligations for their own employees onto the plaintiff. Specifically, this "dumping" practice was allegedly accomplished by means of the fact that prior to 2005 and plaintiff's existence, other professional employment organizations and employee leasing and payroll companies owned and operated by Cassera (which, while providing the same services every year, allegedly changed their names every year), such as Tse-Peo, Inc. (for the year 2004), and Tri-State Bus Drivers Leasing, Inc. (for the year 2000), provided services to other bus companies in which Dennis Scialpi (Scialpi), the owner and president of plaintiff, had an interest. Plaintiff alleges these bus companies were owned by Scialpi and they had leased their employees from the Tse-Peo defendants, but had no employees, and, therefore, should not have been charged with any unemployment taxes. However, plaintiff claims that the Tse-Peo defendants reported the unemployment taxes of its employees, that were leased to the bus companies, under the individual bus company names, instead of under the defendants' business, thereby engaging in "dumping."

Plaintiff alleges that after it was formed, the Tse-Peo defendants then reported to the NYSDOL that plaintiff had acquired the business of another employer liable for New York State unemployment insurance and listed these other bus companies in which Scialpi had an interest. This report to the NYSDOL allegedly caused plaintiff to be subject to a higher unemployment rate, increased charges, penalties, and interest, which plaintiff is still in the process of appealing. Plaintiff claims that the Tse-Peo defendants either failed to calculate the correct amount of unemployment taxes due to the NYSDOL for the first, second, third, and fourth quarters of 2005, resulting in the submission of insufficient taxes on its behalf, failed to properly have the correct rate assessed, or failed to obtain credit for the amount submitted.

In addition, plaintiff alleges that it paid the Tse-Peo defendants the taxes due to the IRS for the 2004 tax year and the fourth quarters of 2005 and 2006 for Form 941 taxes, but that the Tse-Peo defendants failed to timely remit these taxes and the tax filing to the IRS. Due to the Tse-Peo defendants' allegedly late filing of Form 941 and the untimely remitting of taxes, plaintiff has been charged with late fees and penalties of $2,189.09, $200,603.11, and $377,446.25, as of March 3, 2008, plus accruing interest, for the 2004 tax year, the fourth quarter of 2005, and the fourth quarter of 2006, respectively.

Plaintiff further claims that it paid the Tse-Peo defendants the contributions due to New York State for withholding taxes for the second and fourth quarters of 2005, the first and fourth quarters of 2006, and the first quarter of 2007, but that the Tse-Peo defendants failed to pay these withholding taxes. Plaintiff has been charged with tax liabilities of $36,536.31 and $265,919.81 for the first and fourth quarters, respectively, of 2005, and $66,372.91 for the first quarter of 2006, as of February 19, 2008, plus accruing interest, and a penalty of $10,769.53 and a jeopardy assessment of $10,000 by the New York State Department of Taxation for not filing a return for the fourth quarter of 2006. Plaintiff was also charged a penalty of $10,564.89, plus interest, by the New York State Department of Taxation for not filing a return for the first quarter of 2007.

Plaintiff further alleges that it paid the Tse-Peo defendants the contribution for late unemployment insurance owed to New York State for withholdings for the first quarter of 2007, but that the Tse-Peo defendants failed to pay this. Plaintiff has been charged with a liability of $444,914.06 for the first quarter of 2007.

Plaintiff additionally asserts that it overpaid the Tse-Peo defendants for the IRS taxes due for Form 941 taxes for the first quarter of 2007 and that the Tse-Peo defendants overpaid these Form 941 taxes to the IRS and indicated on the return to apply the overpayment to the next quarter on the filing for Form 941. The IRS, instead, applied the overpayment to penalties and interest assessed in the fourth quarter of 2005. Plaintiff claims that the Tse-Peo defendants owe it the amount of this overpayment of $118,518.57, as of April 27, 2007, plus accruing interest.

Plaintiff has had liens placed on it by the NYSDOL and the IRS. Plaintiff is presently in the process of appealing the determinations of the tax authorities and seeking adjustments. Plaintiff claims that the Tse-Peo defendants are liable to it for all amounts due and for all expenses incurred by it in connection with these appeals. Plaintiff further alleged that they demanded that the Tse-Peo defendants provide information regarding the taxes due and cure the deficiencies by paying the amounts due and that they failed to do so. Plaintiff also asserts that the Tse-Peo defendants applied the funds they collected from it and its employees for taxes and fees to payment of their own invoices prior to submitting the funds for the taxes.

On March 14, 2008, plaintiff filed this action against defendants, seeking a total of $2,052,538.84, plus interest and attorney's fees. Plaintiff's second amended complaint alleges causes of action, sounding in breach of contract and indemnification, breach of fiduciary duty, and conversion, as against defendants. Plaintiff seeks to impose personal liability on Cassera based upon a theory of piercing the corporate veil.

DISCUSSION

In support of their instant motion to dismiss, defendants argue that pursuant to the terms of the contract, plaintiff has waived its claims herein. Specifically, defendants rely upon article 20 of the contract, which provides:

c) In the event that [plaintiff] believes that it has any cause of action against [United Tse-Peo, LLC], [plaintiff] shall give written notice to [United Tse-Peo, LLC] of such claim or cause of action not later than forty-five (45) days after the date on which [plaintiff] has become aware of a possible cause of action. Client waives any cause of action for which such written notice is not provided to [United Tse-Peo, LLC].

It is noted that this notice provision in the contract essentially limits the contractual limitation period, in which to determine whether a cause of action exists, to 45 days. However, as the parties did not raise this provision of the contract in the motion, the court will not address this issue.

d) [Plaintiff] additionally agrees that any alleged cause of action against [United Tse-Peo, LLC] must be legally asserted (either by demanding arbitration or filing suit) not later than sixty (60) days after the date on which the [plaintiff] is made aware that a cost [sic] of action has arisen. Unless suit is filed or a demand for arbitration is filed within such sixty-(60) day period, all such alleged causes of action are waived and barred by limitations.

Although the contract requires the submission of all disputes to binding arbitration, neither plaintiff nor defendants wish to arbitrate.

CPLR 201 allows parties to contract for a shorter Statute of Limitations period than that proscribed by a statute ( Matter of Incorporated Vil. of Saltaire v Zagata, 280 AD2d 547, 547-548). "Absent proof that the contract is one of adhesion or the product of overreaching or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced" ( Timberline Elec. Supply Corp. v Insurance Co. of N. Am., 72 AD2d 905, 906, affd 52 NY2d 793; see also Matter of Incorporated Vil. of Saltaire, 280 AD2d at 547-548). It is assumed that the shortened period was agreed to voluntarily unless the party against whom an abbreviated Statute of Limitations is sought to be enforced demonstrates that there was duress, fraud, or misrepresentation in regard to its agreement to the shortened period ( see Matter of Incorporated Vil. of Saltaire, 280 AD2d at 548; Kozemko v Griffith Oil Co., 256 AD2d 1199, 1200; Krohn v Felix Indus., 226 AD2d 506, 506; Wayne Drilling Blasting v Felix Indus., 129 AD2d 633, 634; Snyder v Gallagher Truck Ctr., 89 AD2d 705, 706).

Plaintiff asserts that a prior 2001 agreement between plaintiff and Resource Staffing, Inc., a similar company owned and operated by Cassera providing the same services to other companies owned and operated by the individuals that own and operate plaintiff, had a 25-month period of limitation and that Scialpi, plaintiff's president, was unaware that this term had been changed in the subject contract. Scialpi asserts (with respect to plaintiff's bargaining position) that he signed the contract, on behalf of plaintiff, under duress and due to coercion. Specifically, Scialpi claims that the contract was presented to him at 9:30 p.m. on June 16, 2004, which was the night before the June 17, 2004 closing of its employee stock ownership plan (ESOP), the closing of the refinance of a fleet of over 400 buses, and the payoff of an existing line of credit ($1,250,000) and the establishment of a new line of credit, as a take it or leave it ultimatum by John Messina, an officer of the Tse-Peo defendants. Scialpi explains that if he did not sign the service agreement on that night, the ESOP, refinancing, and lines of credit would have been lost. Scialpi further explains that if he failed to sign the service agreement, as it existed on that date, the advance payroll funding provided by the Tse-Peo defendants to plaintiff, which was approximately three weeks of payroll equaling approximately $2 million, would have been cancelled by the Tse-Peo defendants, resulting in tremendous damages to plaintiff. Defendants point out that the contract, which became effective on June 17, 2004, was for an initial term of one year, and that the plaintiff subsequently renewed it in June 2005 and June 2006. Defendants thus argue that plaintiff ratified the contract by renewing it and cannot claim duress.

The Court finds plaintiff's argument for duress to be unavailing. Under paragraph 3 of the contract, the contract was automatically renewed for successive one year terms and "[f]ollowing the Initial Term, either party [could] terminate [the] Agreement at any time for any reason by giving thirty (30) days written notice to the other party." It is undisputed that the plaintiff renewed the contract in 2005 and 2006 without modifying the contractual limitation provision. Therefore, "the claim of duress was not raised in a timely manner" as it was only raised after the plaintiff "ratified the agreement" and accepted it's benefits ( Cappelli Enters., Inc. v F J Cont. Food Corp. , 16 AD3d 609 , 610 [2d Dept 2005]).

Although plaintiff's argument for duress is unavailing, the doctrine of equitable estoppel may be applied where a plaintiff is induced by fraud, misrepresentations, or deception to refrain from filing a timely action ( see Zumpano v Quinn , 6 NY3d 666 , 673-674). Plaintiff argues that defendants should be estopped from asserting a contractual period of limitation defense because their conduct induced it to refrain from filing this action.

While defendants, in support of their motion, assert that plaintiff was made aware (for purposes of beginning the running of the contractual limitations period) of the NYSDOL claims relating to the 2005 tax increase from 4.1% to 9.9% by virtue of a May 3, 2006 Memorandum by Ernie Kossoff (Kossoff), defendants' accountant, to Cassera (the May 3, 2006 Memo), the May 3, 2006 Memo also states that on that same date, Kossoff spoke to the NYSDOL and he explained plaintiff's position to the NYSDOL that the rate should be 4.1%, not 9.9%. Furthermore, defendants, by a letter dated May 24, 2006 to the NYSDOL, submitted a request for review on plaintiff's behalf and, in fact, "formally request[ed] a hearing to appeal the decision." Thereafter, defendants continued to represent plaintiff on this tax issue, as evidenced by letters dated November 8, 2006 and May 15, 2007 from Cassera to the NYSDOL. In addition, Cassera wrote letters to the IRS dated December 4, 2006 and January 22, 2007 on a letterhead listing the plaintiff's name ("USA United Holdings, Inc. 160 Broadway 15th Floor New York, NY 10038"), requesting a review of the plaintiff's filings relating to the period ending December 31, 2005. With respect to the December 4, 2006 and January 22, 2007 letters to the IRS, it is noted that "160 Broadway" is the address of Tse-Peo, Inc., not USA United Holdings, Inc., the letters do not give any indication that Cassera is not an employee of the plaintiff, and Cassera repeatedly references the plaintiff in the first person using terms such as "we" and "our." Multiple correspondence from the state and federal governments regarding taxes and unemployment insurance contributions were addressed to plaintiff solely at the "160 Broadway" address including the following: correspondence dated November 3, 2005 and January 9, 2006 from the Department of Labor regarding unemployment insurance contributions; correspondence dated August 14, 2006 from the IRS regarding credit of a tax payment; correspondence dated December 29, 2006 from the IRS regarding tax penalties; notice of pending referral of past due debt to the Department of Taxation and Finance dated May 7, 2007 from the Department of Labor; notice of federal tax lien filing and right to a hearing under IRC 6320 dated September 11, 2007 from the IRS.

Moreover, by letter dated July 16, 2007 to Cassera and others, William Moran, plaintiff's comptroller, confirmed that there were numerous outstanding balances owed to the New York State Department of Taxation and Finance and the NYSDOL that defendants "ha[d] notified [plaintiff] that [they were] handling," and he asked to be updated on the resolution of these issues. Plaintiff's continued reliance upon defendants is similarly evidenced by an August 3, 2007 letter from plaintiff to Cassera, which stated that plaintiff trusted that Tri-state, an alleged alter ego of Tse-Peo, LLC, "will resolve promptly" any tax liabilities that "come to the surface" and demanded that Cassera resolve the fourth quarter Form 941 liability of $188,171.15.

The term, "a/k/a Tri-State" appears under the name "UNITED TSE-PEO, LLC" in the "Client Service Agreement.

Defendants assert that plaintiff was aware of its claims with regard to the 2005 Form 941 taxes on September 28, 2007 when its attorney sent a letter to Tse-Peo, Inc.'s counsel, stating that plaintiff had learned of a tax lien against it. Contrary to defendants' assertions, however, that letter did not state that defendants had failed to meet their contractual obligations. Rather, plaintiff demanded that defendants immediately pay the balance due and clear the UCC-1 filing, and requested that defendants "advise [it] of the steps [they] w[ere] taking to do so and the resolution of the tax lien." Based on the correspondence submitted in support and opposition to the motion, defendants did not provide a written response to plaintiffs' September 28, 2007 request. Although defendants have submitted facsimile and letters dated March 5, 6, 7 and 14, 2008 to support their assertion that plaintiff was aware that a cause of action had arisen, those correspondence were sent within 60 days of the plaintiff filing the complaint on March 28, 2008. Tse-Peo, Inc.'s correspondence of March 7, 2008 includes a memorandum, dated March 6, 2008, addressing Tse-Peo, Inc.'s position on 16 specific tax assessment issues with respect to plaintiff's account. The complaint alleges that the plaintiff demanded that defendants provide information regarding the taxes and cure the tax deficiencies and they failed to do so.

Defendant's March 7, 2008 correspondence also included an unsigned letter dated August 21, 2007 from Cassera to Moran, on "Tri-State Employment Services, Inc." letterhead stating Tri-State's position on plaintiff's IRS penalties, New York State unemployment insurance, and New York State Department of Labor unemployment tax rate increases. However, in plaintiff's March 14, 2008 correspondence to the defendant, plaintiff denied ever receiving the August 21, 2007 correspondence.

Although defendants rely upon various documents to demonstrate that plaintiff was aware that a cause of action had arisen more than 60 days prior to the filing of the complaint, plaintiff has set forth sufficient evidence that defendants continued to assure plaintiff that the defendants were handling the tax matters for the plaintiff and that defendants had received the relevant tax correspondence at issue in this matter as a result of their correspondence with government agencies on plaintiff's behalf. As an agent of plaintiff, the defendants communicated directly with federal and state agencies on numerous occasions, with letterhead indicating a "160 Broadway" address, including the following dates: November 8, 2006; December 4, 2006; January 22, 2007; May 15, 2007. In turn, these government agencies directed various tax assessment correspondence solely to Tse-Peo's office at the "160 Broadway" address on numerous occasions including: November 3, 2005; January 9, 2006; August 14, 2006; December 29, 2006; May 7, 2007; and September 11, 2007. Furthermore, the complaint alleges that plaintiff demanded that the defendants provide information regarding the taxes and cure the tax deficiencies and they failed to do so. Based upon the documents submitted in support and opposition to the motion, it appears that the defendants did not inform the plaintiff of their position on a number of tax assessment issues until March 7, 2008, only three weeks before plaintiff filed the complaint.

On a motion to dismiss pursuant to CPLR 3211, the allegations in the complaint are taken as true and the plaintiff has sufficiently set forth factual allegations to raise a triable issue of fact as to whether defendants' misrepresentations or acts of deception induced plaintiff to refrain from filing a timely action pursuant to the contract and thus "whether the doctrine of equitable estoppel should apply to toll the statute of limitations" ( Nick v Greenfield, 299 AD2d 172, 174 [1st Dept 2002]; see Zumpano, 6 NY3d at 674; see Morando v Morando , 41 AD3d 559, 652 [2d Dept 2007]).

Moreover, though defendant may ultimately be equitably estopped from raising the contractual filing limitation defense, the 60 day contractual limitation for filing a suit may be unenforceable where the time period is unreasonably short or the provision is not clear and unambiguous. Where a shorter period of time than the statutory period is fixed by contract, the contractual period, in any event, must be reasonable and it may be examined to determine if it is unreasonably short ( see Planet Constr. Corp. v Board of Educ. of City of NY, 7 NY2d 381, 385; Certified Fence Corp. v Felix Indus., 260 AD2d 338, 339; Hornstein v Negev Airbase Constructors, 110 AD2d 884, 884; Matter of Brown Guenther [North Queensview Homes], 18 AD2d 327, 329-330). In making this determination of whether the contractual period of time is reasonable, consideration must be given to all provisions of the contract, the circumstances of its performance, and the relative abilities and bargaining positions of the parties ( see South Cent. Am. Commercial Co. v Panama R.R. Co., 237 NY 287, 291-292; Fitzpatrick Weller v Miller, 309 AD2d 1273, 1273; Brown Guenther, 18 AD2d at 329-330). It is "well established that the contractual limitation must not be so short as to be unreasonable in the light of the provisions of the contract and the circumstances of its performance and enforcement'" ( Fitzpatrick Weller, 309AD2d at1273, quoting Brown Guenther, 18 AD2d at 329). A court will not enforce an agreement that provides an unreasonably short period of time to sue ( see Fitzpatrick Weller, 309 AD2d at 1273; Certified Fence Corp., 260 AD2d at 339; Brown Guenther, 18 AD2d at 329). Furthermore, "[a]lthough parties to a contract may agree to limit the period of time within which an action must be commenced to a shorter period than that provided by the applicable Statute of Limitations,' the intent to shorten the limitations period must be set forth in a clear and unambiguous manner" ( Fitzpatrick, 309AD2d at1273; see Spataro v Hirschhorn , 40 AD3d 1070 , 1071 [2d Dept 2007]; Brown Guenther, 18 AD2d at 330).Applying the legal criteria, this Court finds that the 60 day contractual limitation herein for filing a suit is unenforceable as the time limitation was unreasonable in light of the circumstances under which the contract was to be performed. The limitation was also vague and ambiguous. Based upon the correspondence submitted in support and opposition to this motion, it is clear that at least as of May 15, 2007, over a year after the plaintiff received the first memo discussing a tax warrant, the defendants were still communicating with various government agencies on plaintiff's behalf in an attempt to resolve many of the tax issues that precipitated plaintiff's complaint. Many of the tax assessments at issue in this complaint are still under appeal, apparently initiated by defendant, almost three years after plaintiff first became aware of them. As a significant amount of the government's communication regarding the tax assessments at issue were not even sent to the plaintiff's address, it is not reasonable to require plaintiff to have commenced a lawsuit within 60 days of first receiving a memorandum that the tax rate for plaintiff had changed. Given the nature of the services to be supplied under the contract and the ongoing nature of the relationship, during which defendants actually made submissions to the various government agencies on the plaintiff's behalf, a 60-day time period for commencing an action is unreasonably short ( see Spataro, 40 AD3d at 1071; Fitzpatrick, 309AD2d at1273; Brown Guenther, 18 AD2d at 330).

Furthermore, even disregarding a typographical error in the operable term at issue, the time period measured from when a cause of action "has arisen," as indicated in the contract, is not clear and unambiguous, and as such, the limitation is unenforceable. The legal definition of "cause of action" is "[a] group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person" (Black's Law Dictionary 235 [8th ed 2004]). As a "cause of action" may be a "group" of "facts," as appears to be the case in this action, "[i]t would be an exercise in semantics" for this Court to determine an exact date when the plaintiff became aware of enough facts sufficient to create a legal basis for bringing a lawsuit ( Brown Guenther, 18 AD2d at 330). Accordingly, as the 60 day contractual limitation period for filing suit is an unreasonably short period of time, and the terms shortening the limitations period are vague and ambiguous, the 60-day contractual limitation is found to be unenforceable as a matter of law ( see Spataro, 40 AD3d at 1071; Fitzpatrick, 309AD2d at1273; Brown Guenther, 18 AD2d at 330). Whereas the complaint's earliest causes of action arose from the defendants' alleged failure to pay taxes due for the 2004 tax year, and the complaint was filed on March 26, 2008, the action was commenced within the appropriate six-year statute of limitations period ( see CPLR § 213). Accordingly, defendants' motion to dismiss the amended complaint for failure to assert claims within the contractual limitation period is denied.

Paragraph 20(d) of the contract requires plaintiff to file an action within 60 days after becoming aware that a " cost of action has arisen." The Court infers that this term was intended to read, " cause of action had arisen."

Insofar as defendants seek dismissal of plaintiff's second and third causes of action for breach of fiduciary duty by the Tse-Peo defendants and Cassera, respectively, it is noted that a cause of action for breach of fiduciary duty accrues when the fiduciary openly repudiates his or her obligation ( see Matter of Barabesh, 31 NY2d 76, 80; Evangelista v Mattone , 44 AD3d 704, 705; Westchester Religious Inst. v Kamerman, 262 AD2d 131, 131; Matter of Winne, 232 AD2d 956, 957-958). Plaintiff asserts that defendants continually assured it that it would resolve the tax matters at issue, and did not openly repudiate their responsibility until the March 7, 2008 letter. Defendants also argue, however, that plaintiff has failed to set forth a legally cognizable claim for breach of fiduciary duty. They contend that no fiduciary relationship existed between them and plaintiff which could support such a claim.

However, "[a] fiduciary relationship arises between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation'" ( Pergament v Roach , 41 AD3d 569, 571, quoting EBC I, Inc. v Goldman, Sachs Co. , 5 NY3d 11 , 19). "Breach of fiduciary duty is a tort that arises from a violation of a relationship of trust and confidence, such as that of an agent to [its] principal" ( Vione v Tewell , 12 Misc 3d 973 , 978; see also Murphy v Kuhn, 90 NY2d 266, 272; Fortino v Hersh, 307 AD2d 899, 899-900; Deep Blue Ventures, Inc. v Manfra, Tordella Brookes, Inc. , 6 Misc 3d 727, 732).

Furthermore, "a fiduciary relationship exists when one party reposes confidence in another and reasonably relies on the other's superior expertise or knowledge"( Robare v Fortune Brands, Inc. , 39 AD3d 1045 , 1046-1047 [internal citations and quotation marks omitted]; see also Dimsey v Bank of New York, 14 Misc 3d 1205 [A], 2006 NY Slip Op 52418[U], *2 [Sup Ct, NY County 2006]). "[A] cause of action for breach of fiduciary duty may survive, for pleading purposes, where the complaining party sets forth allegations that apart from the terms of the contract, [the plaintiff] and [the defendant] created a relationship of higher trust than would arise from the [contract] alone" ( EBC I, Inc., 5 NY3d at 20).

Here, plaintiff asserts that the Tse-Peo defendants were fiduciaries in connection with the collection and payment of taxes and the submission of taxes and tax forms. It points out that the Tse-Peo defendants employed certified public accountants and an attorney in connection with the services it provided. Plaintiff alleges that it forwarded funds to defendants in trust, trusting that defendants would use them to pay the taxes due to the appropriate taxing authorities, and that it provided defendants with the necessary information for them to file its returns. Plaintiff further asserts that Cassera is in exclusive control of the Tse-Peo defendants, is licensed by the State of Florida, and was plaintiff's fiduciary in connection with the submission of taxes and tax forms on behalf of it and its employees. Plaintiff alleges that defendants were under a duty to act for it and give it advice upon matters within the scope of their relation. Plaintiff also asserts that Tse-Peo, LLC was contractually obligated to, and that defendants, did, in fact, act as its agent in administering its payroll taxes. In this regard, plaintiff has submitted a letter dated December 4, 2006 to the IRS and a letter dated November 8, 2006 to the NYSDOL from Cassera, written on behalf of plaintiff, purportedly as plaintiff's agent, to resolve the tax issues. Plaintiff asserts that it reposed confidence in defendants, and reasonably relied upon their superior expertise and knowledge( see Robare, 39 AD3d at 1046-1047).

It is noted that, in the context of a motion to dismiss pursuant to CPLR 3211, a court must "liberally construe the complaint . . . and accept as true the facts alleged in the complaint and any submissions in opposition to the dismissal motion" ( 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152; see also Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414; Leon v Martinez, 84 NY2d 83, 87). The court must also "accord [the] plaintiff[ ] the benefit of every possible favorable inference" ( 511 W. 232nd Owners Corp., 98 NY2d at 152). "The motion must be denied if from the pleadings' four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law'" ( id., quoting Polonetsky v Better Homes Depot., 97 NY2d 46, 54).

Here, plaintiff's allegations, as evidenced by the terms of the contract, and the conduct of the parties, sufficiently demonstrated a fiduciary relationship between the parties to withstand defendants' motion to dismiss. While defendants contend that the parties' relationship was merely an arm's length business transaction, the correspondence submitted in support and opposition to the present motion demonstrate that Tse-Peo, LLC acted as an agent of the plaintiff in corresponding with state and federal administrative agencies with respect to the review and appeals of tax assessments and unemployment insurance penalties and plaintiff relied on defendant's expertise and knowledge in resolving it's tax assessment issues. This representation by Tse-Peo, LLC may be distinguishable from the specific tasks to be performed by Tse-Peo under the contract. Accordingly, a fiduciary relationship between the plaintiff and Tse-Peo, LLC has been sufficiently pleaded ( see Pergament, 41 AD3d at 571; see EBC I, Inc., 5 NY3d at 19; see Robare, 39 AD3d at 1046-1047).

Defendants further argue, however, that only Tse-Peo, LLC had a contractual obligation to perform accounting and filing services for plaintiff, and that Cassera, as an officer of Tse-Peo, LLC, cannot be held liable for a breach of fiduciary duty. Such argument is unavailing.

Under the doctrine of piercing of the corporate veil, "[e]quity will intervene to pierce the corporate veil' and permit the assertion of claims against the individuals who control the corporation, in order to avoid fraud or injustice" ( Damianos Realty Group, LLC v Fracchia , 35 AD3d 344, 344; see also Matter of Morris v New York State Dept. of Taxation Fin., 82 NY2d 135, 140-141). "Generally, piercing the corporate veil requires a showing that the individual defendants (1) exercised complete dominion and control over the corporation, and (2) used such dominion and control to commit a fraud or wrong against the plaintiff which resulted in injury" ( Damianos Realty Group, LLC, 35 AD3d at 344; see also Matter of Morris, 82 NY2d at 141; Seuter v Lieberman, 229 AD2d 386, 386).

Defendants argue that plaintiff has not sufficiently pleaded that they abused the corporate form to defraud it or to perpetrate a wrong. Plaintiff, however, asserts that the Tse-Peo defendants are not only successors and assigns of each other, but are all the same company, and that Cassera simply used all the various companies interchangeably. Plaintiff's complaint pleads that the Tse-Peo defendants have no existence of their own, but are mere instrumentalities, agents, and alter egos of Cassera. It further pleads that Cassera has employed the corporate forms of the Tse-Peo defendants to work a fraud upon it which will result in the unjust enrichment of defendants at its expense unless such forms are disregarded.

"Veil piercing is a fact-laden claim" that is not well suited for resolution upon a motion to dismiss ( Damianos Realty Group, LLC, 35 AD3d at 344, quoting First Bank of Ams. v Motor Car Funding, 257 AD2d 287, 294; see also Forum Ins. Co. v Texarkoma Transp. Co., 229 AD2d 341, 342). Before dismissal can be granted, a plaintiff is entitled to obtain necessary discovery to ascertain whether there are grounds to pierce the corporate veil ( see First Bank of Ams., 257 AD2d at 294; Aubrey Equities v SMZH 73rd Assoc., 212 AD2d 397, 398). A complaint which seeks to pierce the corporate veil should be upheld unless it can be said that it "is totally devoid of solid nonconclusory allegations" ( International Credit Brokerage Co. v Agapov, 249 AD2d 77, 78, quoting Sequa Corp. v Christopher, 176 AD2d 498, 498; see also Whitmore Group, Ltd. v Zurich Am. Ins. Co., 11 Misc 3d 1069[A], 2006 NY Slip Op 5044[U], *4 [Sup Ct, NY County 2006]). In the case at bar, the complaint is not so totally devoid of such allegations so as to warrant its dismissal at this early pre-answer stage of the action and prior to affording plaintiff an opportunity to engage in discovery ( see Ledy v Wilson , 38 AD3d 214, 215; Berry Packing Corp. v Atlantic Veal Corp., 302 AD2d 417, 418; Board of Mgrs. of Regal Walk Condominium I v Community Mgr. Servs. of Staten Is., 226 AD2d 414, 415; Toroy Realty Corp. v Ronka Realty Corp., 113 AD2d 882, 883). Given the deference to be accorded to pleadings on a motion to dismiss, the court finds that plaintiff's complaint, at this stage of the action, raises cognizable causes of action for breach of fiduciary duty against defendants collectively and Cassera individually, warranting denial of defendants' motion to dismiss ( EBC-I, Inc., 5 NY3d at 19-20).

Defendants also argue that plaintiff's fifth and sixth causes of action for conversion fail to state cognizable causes of action. "A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession" ( Colavito v New York Organ Donor Network, Inc. , 8 NY3d 43 , 49-50).

In an attempt to satisfy this definition of conversion, plaintiff's fifth and sixth causes of action generally allege that the Tse-Peo defendants and Cassera, respectively, intentionally and without authority, assumed and exercised control over plaintiff's and its employees' property and interfered with their right of possession by failing to remit the taxes due. It is well established that "a claim of conversion cannot be predicated on a mere breach of contract" or where the plaintiff's claim does not allege a wrong independent from the plaintiff's contract claim ( MBL Life Assur. Corp. v 555 Realty Co., 240 AD2d 375, 376-377; see also Priolo Communications v MCI Telecom. Corp., 248 AD2d 453, 454). However, the tax monies alleged to have been converted were not the funds of plaintiff's alone, but were actually money earned by plaintiff's employees, held in trust, first by plaintiff, and transferred to defendants in trust, to be paid to governmental authorities in satisfaction of the employees' tax obligations. As such, plaintiff's fifth and sixth causes of action are not solely predicated on a breach of the contract but allege a separate taking or wrong independent of that claim. Dismissal of these conversion claims is not warranted ( see CPLR 3211[a] [7]).

CONCLUSION

Accordingly, defendants' motion to dismiss plaintiff's complaint is denied. Defendants shall serve and file their answer within 30 days of the date hereof.

This constitutes the decision and order of the court.


Summaries of

USA United Holdings, Inc. v. Tse-Peo, Inc.

Supreme Court of the State of New York, Kings County
Apr 23, 2009
2009 N.Y. Slip Op. 50775 (N.Y. Misc. 2009)
Case details for

USA United Holdings, Inc. v. Tse-Peo, Inc.

Case Details

Full title:USA UNITED HOLDINGS, INC., Plaintiff, v. TSE-PEO, INC., et al., Defendants

Court:Supreme Court of the State of New York, Kings County

Date published: Apr 23, 2009

Citations

2009 N.Y. Slip Op. 50775 (N.Y. Misc. 2009)