FILED: NASSAU COUNTY CLERK 12/22/ :59 AM

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1 INDEX NO /2015 FILED: NASSAU COUNTY CLERK 12/22/ :59 AM NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 12/22/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU No /2015 HENRY DIGIOVANNI, v. Plaintiff QUISQUEYA REYNOSO AND FRANCIS DEVIZIA, Hon. Galasso Defendants DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS Comes now defendants Francis DeVizia C'DeVizia'') and Quisqueya Reynoso ("Reynoso''), and in support of their Motion :o Dismiss pursuant to CPLR 3211 against Henry Digiovanni's ("Digiovanni'') complaint, files jointly the following Memorandum of Law. I. Case Background Digiovanni alleges that he traveled to Pennsylvania to view and make an offer on a house located at 86 Windsor Road, Hawley, Pennsylvania C'house''), owned wholly by Reynoso, and that after several communications with DeVizia, he possesses an oral contract for the purchase and sale of Reynoso's house for $7,500 (see Complaint as Exhibit 1), and Digiovanni Opposition to Motion at ~6, ~16-70 (attached hereto efiled on 09/08/2015 (attached as Exhibit 2)). While the alleged terms and responsibilities of his alleged oral contact are left utterly undefined, he alleges to have made deposits to Reynoso totaling $5,400, and that both DeVizia and Reynoso breached his so-called oral contract to sell the described real estate in Pennsylvania because instead of selling it to Digiovanni for $5,400, they previously sold the property instead to "John and Jane Doe" (See Complaint at ~19, 22 & 57). Digiovanni also alleges, frivolously at the very best, that DeVizia is "an employee" of Reynoso (See Complaint at ~11), that DeVizia and Reynoso both regular!y conduct business in the State of New York (See Complaint at Agent" (See Complaint at ~7), ~4-10), and that DeVizia is a "Real Estate presumably either separately or only for the described property, yet offers no reason why he believes any of such allegations are true, nor any evidence attached to his complaint. In fact, despite his onerous and lengthy allegations, he fails to attach one single admissible proof to his complaint of any kind substantiating any of

2 his allegations. Nevertheless, he remains convinced that he possesses an enforceable oral contract with both DeVizia and Reynoso for the purchase and sale of the described real estate in Pennsylvania, that he has valid additional causes of action for fraud in the. inducement, conversion, and account stated against the Defendants, and that Nassau County is the appropriate venue to prosecute his claims against both DeVizia and Reynoso. We respectfully request that this Court grant this Motion to Dismiss and dismiss all of Digiovanni's claims for any or all of the foregoing reasons. II. Argument A. Digiovanni's breach of oral contract claim is barred under the New York Statute of Frauds and fails to state a claim which relief may be granted Digiovanni's action is wholly dependent upon his allegation that he possesses an enforceable oral contract with both DeVizia and Reynoso for the purchase and sale of Reynoso's house for $7,500, and that both DeVizia and Reynoso made various failures to deliver on the alleged terms. Upon the strength of that alleged claim, Digiovanni states claims for breach of contract, fraud in the inducement, conversion and account stated. Considering Digiovanni's breach of contract-count I claim first, the central issue in the instant ~atter is whether Digiovanni's alleged oral contract falls outside the purview of the Statute of Frauds. First, in order for there to be a breach, there must be a valid contract. Digiovanni profoundly fails to satisfy this criteria. If the Statute of Frauds does apply, then there is no enforceable contract. GOL requires every agreement that cannot be performed within one year to be in writing and subscribed by the party to be charged. GOL similarly requires that a contract for the sale of real property be in writing and subscribed by the party to be charged. These statutes comprise the Statute of Frauds applicable to the instant matter as the subject of the transaction is real property. Here, it is undisputed between the parties that a written contract does not exist (see Digiovanni Opposition to Motion at (attached as Exhibit 2)). ~6, efiled on 09/08/2015 Even assuming Digiovanni's allegations as true (which the Defendants vehemently deny that they are true), Digiovanni fails at the.threshold; he does not allege an enforceable contract as his alleged oral contract for the purchase and sale of real estate is specifically prohibited under the Statute of Frauds, GOL and GOL The rationale for the statute of frauds is to deter precisely the efforts that Digiovanni attempts to engage in here. The rationale is that requiring a signed writing will prevent or

3 at least radically limit attempts to enforce unfounded and fraudulent claims against the real estate of another. The statute reflects a recognition that the higher the stakes in a transaction, the greater the incentive to fabricate or distort an agreement, and, therefore, the greater the need for requiring a signed writing. Thus, the statute of frauds drastically reduces the opportunity for fraud, perjury and similar mischief in real estate transactions. While GOL 5-703(4) permits the Court "... to compel the specific performance of agreements in cases of part performance" even where the Statute of Frauds would normally apply, pursuant to the plain language of the Statute and the relevant case law, this section only applies to an action for specific performance. It cannot be applied in cases seeking monetary damages only. See, Papell v. Calogero, 114 AD2d 403 (2nd Dept. 1985), mod. on other grounds, 68 NY2d 705 (1986); Mihalko v. Bloody, 86 AD2d 723 (3rd Dept. 1982). Here, the four causes of action asserted by Digiovanni seek monetary damages only. Even if the Court accepts Digiovanni factual allegations as true, the breach of contract claim is barred. Digiovanni seeks monetary damages only and has not sought a constructive trust or other equitable relief. Accordi~~ly, the Defendants are entitled to summary judgment as a matter of law on Digiovanni's brea~h of contract claim. B. Digiovanni's Count II, III, and IV causes of action are barred under common law and the Economic Loss rule and fail to state a claim in which relief may be granted Turning to Digiovanni's second claim of fraud in the inducement, the claim is nothing more than the same breach of contract claim masquerading as a tort. Yet both common law and the economic loss rule prohibit Digiovanni from seeking to remedy an alleged breach of contract through resort to the common law of fraud. A cause of action alleging fraud does not lie where the only fraud claim relates to a breach of contract (see Ross v Delorenzo, 28 AD3d 631, 636 [2006]; WIT Holding Corp. v Klein, 282 AD2d 527, 528 [2001]; Morgan v Smith Corp., 265 AD2d 536 [1999]; Benedict Realty Co. v. City of New York, 45 AD3d 713 (2d Dept. 2007) and cases cited therein). A "mere misrepresentation of an intention to perform under the contract is insufficient to allege fraud". WTT Holding Corp. v. Klein, 282 AD2d 527 (2d Dept. 2001). Here, Digiovannis' cause of action for fraud is wholly duplicative of his barred breach of oral contract claim. Digiovanni may not recast his breach of contract claim as a fraud or account stated since his alleged fraud or breach in those causes of action relate only to

4 breach of his alleged oral contract. If one could use a quasi-contract claim to enforce an oral real estate contract, the statue of frauds would be pointless. Digiovannis' argument is a non-starter. The statute of frauds precludes the enforcement of real estate contracts unless they are in writing. See Pollak v Moore, 85 AD3d 578, 579 (1st Dept 2011), citing General Obligations Law 5-703(2). Likewise, the Economic loss doctrine further bars the disguising of tort and contract claims that are inexplicably intertwined. In sum, the "Economic Loss Rule reflects the principle that damages arising from the failure of the bargained-for consideration to meet the expectations of the parties are recoverable in contract, not tort." Bristol-Myers Squibb, Indus. Div. v. Delta Star, Inc.,206 A.D.2d 177, 181 (N.Y. App. 1994). Moreoever, Digiovanni specifically asserts as one of the core elements of his so called fraud in the inducement claim is that the Defendant(s) sold the property in question to two different people. He repeats these allegations multiple times over in his complaint, yet offers no specific proof that can support his allegations. purchaser is "John and Jane Doe". In fact, he claims the mystery (See Complaint at ~19, 22 & 57). A certified assessment record from the Wayne County, Pennsylvania tax assessment office dated ~ December 8, 2015 is attached hereto as Exhibit 3, and very profoundly shows Quisqueya Reynoso as the sole owner of the property in question, and furthermore that she has been the sole owner of the property at all times since her acquisition back in The Wayne County, Pennsylvania assessment information on real property is also publicly available on the county's official website at Quite simply, "John and Jane Doe" do not exist! Digiovanni accuses DeVizia and Reynoso of fraud, while it is Henry Digiovanni engaging in widespread and repeated fraud! He has intentionally and maliciously misled this Court multiple times over! Not only is his fraud claim barred as a matter of law, but the fundamental factual allegations are wholly scandalous. Likewise, the count III conversion claim is both legally and factually meritless. In New York, "[W]here possession of property is initially lawful, conversion occurs when there is a refusal to return the property upon demand." Salatino v. Salatino, 64 A.D.3d 923, 925 (3d Dep't 2009); see also Dudek v. Nassau County Sheriff's Dep't, No. 12-CV-1193 (PKC), 2013 U.S. Dist. LEXIS , at *49-50 (E.D.N.Y. Nov. 19, 2013). As demand is required, Digiovanni "must establish that he made a demand that is 'sufficiently definite and complete to apprise the defendant of the specific property claimed,'... must 'fully apprise the defendant of [Digiovanni's] claim to the property involved... '

5 [and] must be absolute and unequivocal." Thryoff v. Nationwide Mutual Ins. Co., No. 00CV-6481T, 2009 U.S. Dist. LEXIS 9547, at *6 (W.D.N.Y. Feb. 10, 2009). Here, Digiovanni specifically asserts that deposits were indeed made by a "lawful" means, by his alleged depositing to Reynoso's bank account. Digiovanni then claims to have contacted both DeVizia and Reynoso in an undisclosed manner "on or about April of 2015" (See Complaint at ~87). He plainly fails to meet the required threshold of making an apprising that is absolute and unequivocal. First of all, he fails to indicate a method of how his so-called demand was even made, or even a specific date he made it on. (See Complaint at ~86-90) The claim fails on its face as once again, even accepting the claims as true (which Reynoso and DeVizia deny) they fall short of the required "sufficiently definite and complete" and not "absolute and unequivocal". 1. Governing Standard on Documentary Evidence that utterly refutes factual allegations on a Motion for Summary Judgment In a motion for summary judgment the moving party bears the burden of making a prima facie showing that he or she is entitled to summary judgment as a matter of law, submitti ~g sufficient evidence to demonstrate the absence of a material issue of fact. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957); Friends of Animals, Inc. v. Associated Fur Mfrs., 46 NY2d 1065 (1979); Zuckerman v. City of New York, 49 NY2d 557 (1980); Alvarez v. Prospect Hospital, 68 NY2d 320 (1986). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissable form sufficient to establish the existence of material issues of fact which require a trial of the action. Zuckerman, supra. On this Motion to Dismiss, "factual allegations that do not state a viable cause of action, that consist of bare legal conclusions, or that are inherently incredible or clearly contradicted by documentary evidence are not entitled to... consideration." Skillgames, 1 AD3d at 250, citing Caniglia v Chicago Tribune-New York News Syndicate, 204 AD2d 233 (1st Dept 1994). Further, where the defendant seeks to dismiss the complaint based upon documentary evidence, the motion will succeed if "the documentary evidence utterly refutes [Digiovanni's] factual allegations, conclusively establishing a defense as a matter of law." Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 (2002) (citation omitted); Leon v Martinez, 84 NY2d 83, 88 (1994). Here, the documentary evidence speaks for itself. Digiovanni alleges a breach of an unenforceable and non-existent oral contract for real property in Pennsylvania based upon

6 a documented wholly false allegation that the subject property was previously sold to a third party. furthermore, because Digiovanni's oral contract claim and duplicative fraud claim fail as a matter of law, his fraud in the inducement claim as well as his account stated claim also die on the vine of the failed breach of oral contract claim. Because Digiovanni cannot establish tort liability, and because the documentary evidence utterly refutes Digiovanni's factual allegations, the conversion claim, the fraud in the inducement and the account stated claim are also ripe for dismissal. III. Conclusion For all the foregoing reasons, the Defendants respectfully request that the Court grant the Defendant's Motion for Summary Judgment dismissing this action in its entirety on the basis of (1) Digiovanni's breach of contract claim is barred under the New York Statute of Frauds, GOL 5-703, and he does not have an enforceable oral contract (see Section II.A, infra), and/or (2) the fraud in the inducement and account stated claims are duplicative of the failed breach of contract claim and barred under common law as well as the economic loss rule (see Section 11.B, infra) and (3) the fraud in the inducement claim ~ and the conversion claim are factually scandalous with Documentary Evidence that utterly refutes factual allegations and also fails to state a claim which relief may be granted (see Section 11.B(l), infra). For any and/or all of the foregoing reasons, the Defendants respectfully request that the Court enter summary judgment in their favor and/or for any other additional relief that the Court deems just and proper under the circumstances. Dated: December 22, 2015