Goldberg v. Torim

Goldberg v Torim 2026 NY Slip Op 05721 October 6, 2026 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. David Goldberg, Plaintiff-Appellant, v Shloime Torim, et al., Defendants-Respondents. Decided and Entered: October 06, 2026 Index No. 151425/18|Appeal No. 7059|Case No. 2025-06785| Before: Scarpulla, J.P., Gesmer, Shulman, O'Neill Levy, Chan, JJ. Law Offices of Jonathan E. Neuman, Fresh Meadows (Jonathan E. Neuman of counsel), for appellant. Law Office of Joseph J. Schwartz, P.C., Brooklyn (Joseph J. Schwartz of counsel), for respondents. [*1] Order, Supreme Court, New York County (Francis A. Kahn III, J.), entered September 17, 2025, which denied plaintiff's motion for summary judgment and granted defendants' motions for summary judgment dismissing the complaint, unanimously modified, on the law, to deny defendants' motions except as to the direct cause of action for conversion as against defendant Leah Torim, and otherwise affirmed, without costs. Plaintiff, who seeks an award of money damages arising from the sale of real property, asserts that he is entitled to summary judgment on his complaint because defendants named him on a Real Property Transfer Report, Form RP-5217 as owner of the premises and are therefore estopped from denying that he is the owner as stated on that form (see Mahoney-Buntzman v Buntzman, 12 NY3d 415, 422 [2009]). Supreme Court properly denied plaintiff's motion for summary judgment based on tax estoppel because the record presents issues of fact as to the estoppel effect of the form. For the same reason, however, the court also should have denied defendants' motions to dismiss the complaint. Defendants first asserted that they had no recollection of preparation of the form or the signature on it. However, in opposition to plaintiff's motion for summary judgment, defendant Shloime Torim stated that defendants oversaw the preparation and filing of the form, but that he did not believe plaintiff's name appeared on the form; rather, he asserted, the signature on the document in the space reserved for "buyer's signature" may have been placed there by a runner he employed to file documents. For his part, plaintiff asserts that one of the defendants forged his signature on the form RP-5217, an assertion that both defendants deny. Nonetheless, even assuming, as Supreme Court found, that the buyer listed on the form was actually an entity by the name of 49 Saddle Corp., plaintiff's signature in the space reserved for the buyer's signature raises an issue of fact as to whether plaintiff was in fact the owner of the property, entitling him to the proceeds of the sale. Given the equitable nature of estoppel and defendants' inconsistent submissions about the form's preparation, whether defendants are estopped from denying that plaintiff was the owner of the property cannot be decided on summary judgment. [*2] Supreme Court properly dismissed the cause of action for breach of fiduciary duty. "A fiduciary relationship 'exists 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' " (MP Cool Invs. Ltd. v Forkosh, 142, AD3d 286, 292 [1st Dept 2016] [internal quotation marks omitted], lv denied 28 NY3d 911 [2016]). Here, Shloime demonstrated through plaintiff's deposition testimony that no fiduciary relationship existed and plaintiff failed to raise a triable issue of fact on this cause of action. The parties' personal relationship alone does not give rise to a fiduciary relationship, especially given that plaintiff admitted that Shloime did not act as plaintiff's real estate broker (see Oddo Asset Mgt. v Barclays Bank PLC, 19 NY3d 584, 593 [2012] [noting that when parties fail to create a relationship of higher trust, courts should not elevate their relationship to one of fiduciaries and "fashion the stricter duty for them"] [internal quotation marks omitted]). Supreme Court, however, should not have dismissed the cause of action for conversion in its entirety. According to plaintiff's version of the transaction, defendants took money from him for the purpose of purchasing and selling the property on his behalf and then failed to turn over all the proceeds. Plaintiff therefore raised an issue of fact as to whether the funds allegedly taken are sufficiently identifiable and whether he has a possessory interest in the proceeds of the sale made with his funds for his benefit (see Colavito v NY Organ Donor Network, Inc., 8 NY3d 43, 50 [2006]; cf. Black v Phoenix Cayman Ltd., 234 AD3d 472, 474 [1st Dept 2025]). Plaintiff has waived any challenge to the dismissal of his direct claim for conversion as against Leah Torim by failing to address that dismissal in his briefs. Nonetheless, issues of fact as to Leah's role in the transactions, including her ownership of 49 Saddle and the entity that received the proceeds of the sale, preclude summary judgment as to the vicarious liability causes of action against her (see Vanderburg v Brodman, 231 AD2d 146, 147-148 [1st Dept 1997]). Finally, defendants' argument that the action should be dismissed for failure to join a necessary party is meritless, because dismissal for failure to join a necessary party is not mandatory under CPLR 1001. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: October 6, 2026