O'Hara v. Bond

O'Hara v Bond 2024 NY Slip Op 34189(U) November 26, 2024 Supreme Court, Kings County Docket Number: Index No. 522051/2022 Judge: Ingrid Joseph Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 11/26/2024 03:48 PM INDEX NO. 522051/2022 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 11/26/2024

At an IASlAS Tenn, Part 83 of Term, Part of the Supreme Supreme Court Court ofof the State State of New York, held of New held in and for the County of the County of Kings, Kings, at the Courthouse, Courthouse, at A~s A~s Street, Street, Brooklyn, New York, on Brooklyn, New t h e ~ day of JJo the~dayof '1~ JJo\f~ ,,2024.

2024.

PRE PRE S ENT: SEN T: HON.

HON. INGRID INGRID JOSEPH, JOSEPH, J.S.C. J.S.C. SUPREME SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK COUNTY COUNTY OF KINGS KINGS -----------------------------------------------------------------------X -----------------------------------------------------------------------)( JOHN JOHN O'HARA, O'HARA, both both individually individually and in his official official Capacity behalf of Capacity on behalf of O'HARA O'HARA FOR FOR SENATE, SENATE, and and O'HARA O'HARA FOR FOR SENATE, SENATE, Plaintiffs, Plaintiffs, -against- -against- Index No.: 522051/2022 Index No.: 522051/2022

MATTHEW MATTHEW BOND, BOND, ANDREY ANDREY BYSTROV, BYSTROV, and DAN DAN JOHNSON, JOHNSON, individually individually and and in their their official official capacity capacity DECISION DECISION AND AND ORDER ORDER as partners partners ofBRYANTBYSTROV, ofBRYANTBYSTROV, LLC, LLC, and (Mot. (Mot. Seq. No.1) No. 1) BRYANTBYSTROV, BRYANTBYSTROV, LLC, LLC, Defendants.

Defendants. ------------------------------------------------ -------------- ·-------X ---------------------------------------------------------------~-------)( The The following following e-filed papers read e-filed papers read herein: herein: NYSCEF Doc.

NYSCEF Nos.: Doc. Nos.: Notice of Notice of Motion/ Motion/ Affirmation/ /Exhibits/Memorandum of Affirmation/ /Exhibits/Memorandum of Law Law .............. . 2-8 Affirmation Affirmation in Opposition/Exhibits Opposition/Exhibits ......................................................... . 30-37 - 37 Reply Reply Affirmation Affirmation .................................................................................... . 47 Defendants Defendants Matthew Matthew Bond, Bond, Andrey Audrey Bystrov, Bystrov, Dan Dan Johnson Johnson and and BryantBystrov, BryantBystrov, LLC LLC (political (political consulting consulting firm, "BB "BB LLC") LLC") (collectively, (collectively, "Defendants") "Defendants") move move for an order, pursuant to order, pursuant CPLR CPLR 321l(a)(l), 3211(a)(l), (7) and and (8), dismissing dismissing Plaintiffs Plaintiffs John John O'Hara O'Hara ("Plaintiff') ("Plaintiff') and O'Hara O'Hara for Senate's Senate's complaint complaint (Mot. No. 1). Plaintiffs (Mot. Seq. No.1). Plaintiffs oppose oppose the motion. motion.

As an initial matter, the initial matter, the Court notes that Court notes that this action action arises out of arises out of Plaintiffs unsuccessful Plaintiff's unsuccessful candidacy New York candidacy for a New York Senate Senate seat seat on the Primary Primary Election ballot on August Election ballot August 23, 2022. In order 23,2022. order to run for elective elective office, office, a candidate candidate must must comply comply with with Section Section 6-118 6-118 of of the Election Election Law, Law, which which provides, in part, provides, part, that that "the designation of "the designation of a candidate candidate for party party nomination nomination at a primary primary election election and the nomination nomination of of a candidate candidate for election election to a party party position position to be elected elected at a primary primary election election shall be by designating petition" (Election designating petition" (Election Law S 6-118).

Law § 6-118). The The Board Board of of Elections Elections defines defines a

"petition" "petition" as "one "one or or more more sheets, which maybe sheets, which with the may be filed with Board in one the Board volumes, more volumes, one or more together together with required cover any required with any sheet, which cover sheet, same candidate nominate the same which nominate public particular public candidate for a particular office.,,1 office." 1 Election Election Law Law proffers proffers the the requirements for the requirements for form of the form the designating of the and the petition and designating petition number number of of signatures, signatures, depending depending on which public on which the individual office the public office Election running for (see Election individual is running Law §§ Law ~~ 6-134, 6-134, 6-135).

6-135). Written objections to the designating Written objections petition(s) may designating petition(s) with may be filed with specifications of specifications objections, including of objections, total number the total including the signatures objected of signatures number of Law Election Law objected to (see Election §6-154). ~ 6-154).

On or about about August Plaintiffs filed a summons 2022, Plaintiffs August 1, 2022, complaint in which and complaint summons and they allege which they allege that that Plaintiff Plaintiff and and Defendant Defendant Bond, partner at BB Bond, a partner LLC, entered BB LLC, into a contract entered into 2022, May 19, 2022, contract on May for $20,771, $20,771, in exchange exchange for the of 1,700 collection of the collection 1,700 signatures from registered signatures from within democrats within registered democrats New York Senate New York District #17.

Senate District Plaintiff asserts # 17. Plaintiff paid BB that he paid asserts that BB LLC $22,771, the original LLC $22,771, original contracted amount plus contracted amount additional $2,000 plus an additional $2,000 requested According to Plaintiff, LLC. According requested by BB LLC. when Plaintiff, when it became became clear clear that LLC would that BB LLC get 1,700 signatures not get would not signatures he hired second vendor2 in hired a second anticipation of anticipation of BB LLC's breach of LLC's breach the contract. of the Plaintiff asserts contract. Plaintiff asserts that BB LLC that BB breached the LLC breached contract contract when when it informed him on June informed him only 1,515 signatures that only 2022, that June 10, 2022, signatures would delivered. would be delivered.

Thereafter, Thereafter, on on June 10,2022, June 10, Plaintiff filed four volumes 2022, Plaintiff designating petitions of designating volumes of 2,437 containing 2,437 petitions containing signatures. signatures.

According According to Plaintiffs Plaintiff's petition Board of against the Board petition filed against of Elections under index Elections under number index number 517420/2022 517420/2022 (the "Election Action"), (the "Election two individuals Action"), two general objections filed general individuals filed the invalidate the objections to invalidate designating petitions on or about designating petitions 2022 (index June 13, 2022 about June (index No. 517420/2022; NYSCEF No. 517420/2022; No. 1).

Doc No.1).

NYSCEF Doc On June On June 20, 2022, Plaintiffs allege 2022, Plaintiffs allege that Board of that the Board of Elections issued a Clerk's Elections issued indicating Report indicating Clerk's Report that that only only 634 signatures were valid, signatures were and 956 valid, and out of out the 2,437 of the signatures were 2,437 signatures gathered outside were gathered of outside of Senate District Senate District #17. Ultimately, Commissioners of Ultimately, the Commissioners of the Board Elections determined of Elections Board of that determined that Plaintiff Plaintiff did not not meet meet the the required placed on the signatures to be placed required 850 signatures the Senate ballot for the the ballot Senate Democratic Democratic Primary.

Primary. Plaintiff alleges that Plaintiff alleges Bond. to hire contacted Bond that he contacted LLC to do a "Reverse hire BB LLC "Reverse Specification" ("reverse Specification" spec") in an attempt ("reverse spec") attempt to declare 216 signatures declare the 216 necessary to qualify signatures necessary qualify as

1 Board Board ofof Elections Elections in the City of the City of New New York, York, Designating Petition & Opportunity DesignatingPetition Ballot Petition Opportunity to Ballot Rules/or Petition Rules for Primary Elections, available Primary Elections, https://vote.nyc/sites/default/files/news/2022- available at https://vote.nyc/sites/default/files/news/2022- 03/Designating 03/Designating Petition OTB Rules Petition aTE FINAL Adopted Rules FINAL accessed Nov.

22.pdf (last accessed Adopted on 2 15 22.pdf(last 13, 2024).

Nov. 13,2024).

2 of 9 [* 2] FILED: KINGS COUNTY CLERK 11/26/2024 03:48 PM INDEX NO. 522051/2022 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 11/26/2024 a candidate. candidate. Plaintiff Plaintiff further further alleges Bond "volunteered" that Bond alleges that "volunteered" to do the reverse spec the reverse after and after spec and requested documents, delivering the requested delivering documents, Bond respond to any of not respond Bond did not Plaintiffs correspondences. of Plaintiff's correspondences.

In the Election Election Action, referee determined court-appointed referee Action, a court-appointed 567 signatures only 567 that only determined that were signatures were valid. valid. Plaintiff Plaintiff avers avers that Senate incurred O'Hara for Senate that O'Hara $84,856 in legal incurred $84,856 fees and legal fees related to the costs related and costs election law election law proceedings. proceedings. Plaintiffs causes of assert causes Plaintiffs assert action for (I) of action breach of (1) breach of contract failing to contract for failing do the work work pursuant pursuant to their their agreement, fraud for making agreement, (2) fraud representations, and false representations, making false negligence and negligence for (a) failing failing to collect collect signatures the district, within the signatures within verify that failing to verify district, (b) failing signatures the signatures that the collected were collected of registered were of and (c) failing democrats and registered democrats know that failing to know the voters that the registered were registered voters were within the within district. the district.

Defendants now move Defendants now complaint on dismiss the complaint move to dismiss grounds. First, three grounds. on three CPLR under CPLR First, under 3211(a)(8), l(a)(8), Defendants Defendants assert that BB LLC assert that has not LLC has been served not been served with complaint3 and the complaint' with the Plaintiffs and Plaintiffs have not have of service. affidavits of not filed any affidavits service.

Second, Second, Defendants Defendants also that the claim that also claim serves as documentary contract serves the contract under evidence under documentary evidence CPLR 321 CPLR 3211(a)(I), l(a)(l), refuting refuting Plaintiffs' terms. Specifically, allegations as to its terms.

Plaintiffs' allegations Defendants aver Specifically, Defendants that aver that the the contract contract was 1,700 signatures was for 1,700 signatures or 95 total Since the complaint shifts. Since total shifts. silent as to the complaint is silent number number of of shifts shifts deployed deployed by Defendants, Plaintiffs are precluded Defendants, Plaintiffs proving the from proving precluded from of breach of the breach contract claim. contract claim. In addition, though the contract addition, though contract provided payment of provided for a payment only $17,000 $20,771, only of $20,771, $17,000 was invoiced invoiced and paid. paid. Moreover, the complaint Moreover, the alleges $84,856 complaint alleges attorney's fees and $84,856 in attorney's but costs, but and costs, Defendants Defendants argue argue that O'Hara for Senate that O'Hara reported paying Senate reported election attorney their election paying their $2,500. only $2,500. attorney only Third, Defendants argue Third, Defendants that the complaint argue that should be dismissed complaint should under CPLR dismissed under 321 l(a)(7).

CPLR 3211(a)(7).

As to the the individual individual defendants, assert that Defendants assert defendants, Defendants mandated because dismissal is mandated that dismissal Plaintiffs because Plaintiffs have have not not sufficiently sufficiently plead required to pierce facts required plead facts corporate veil. the corporate pierce the Defendants particular, Defendants veil. In particular, contend that contend that Plaintiffs Plaintiffs have not alleged have not would establish that would alleged any facts that establish the defendants' individual defendants' the individual complete control of and control domination and complete domination corporate entity. of the corporate entity. Defendants further argue Defendants further argue that Plaintiffs that Plaintiffs fail to state state a cause cause of of action Defendants aver fraud. Defendants action for fraud. that (a) Plaintiffs aver that cannot prove Plaintiffs cannot scienter the scienter prove the element of element of fraud fraud and and (b) the the fraud fraud claim duplicative of claim is duplicative the breach of the of contract breach of claim. With contract claim. respect With respect to Bond's alleged promise Bond's alleged promise to conduct reverse spec, conduct a reverse Defendants assert spec, Defendants assert that promise to breaking a promise that breaking do a favor favor does does not not constitute constitute fraud. addition, Defendants fraud. In addition, that Plaintiffs' claim that Defendants claim claim . negligence claim Plaintiffs' negligence

3 of 9 [* 3] FILED: KINGS COUNTY CLERK 11/26/2024 03:48 PM INDEX NO. 522051/2022 NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 11/26/2024 is duplicative duplicative of of their their breach breach of contract claim of contract since it pertains claim since the collection pertains to the signatures. of signatures. collection of Additionally, Additionally, with respect to their with respect negligence claim, their negligence Defendants assert claim, Defendants assert that Plaintiffs cannot that Plaintiffs prove cannot prove causation since causation they admitted since they hiring a second admitted to hiring second vendor, who could vendor, who have been could have the source been the source of the of the challenged challenged signatures. Finally, Defendants signatures. Finally, that Plaintiffs contend that Defendants contend failed to state also failed Plaintiffs also of cause of state a cause action for breach action contract. If of contract. breach of was no waiver, there was If there Defendants claim waiver, Defendants claim that not Plaintiffs did not that Plaintiffs perform perform under under the contract because the contract only $17,000 because only $17,000 of the $20,771 of the $20,771 was paid. Since was paid. Plaintiffs state Since Plaintiffs state that that Defendants Defendants gathered gathered 2,437 signatures, Defendants 2,437 signatures, that this assert that Defendants assert the 1,700-signature meets the this meets 1,700-signature requirement contract. If the contract. requirement in the Plaintiffs allege If Plaintiffs allege that only 1,515 signatures that only signatures would were would be or were delivered delivered by Defendants, Defendants, then Defendants' contractual then Defendants' still be satisfied would still obligation would contractual obligation satisfied if they if they deployed deployed more more than than 95 shifts. establishing the Without establishing shifts. Without of canvassing number of the number provided, shifts provided, canvassing shifts Defendants Defendants maintain that Plaintiffs maintain that establish a breach cannot establish Plaintiffs cannot of contract. breach of contract.

In opposition, opposition, Plaintiffs that BB argue that Plaintiffs argue LLC was BB LLC properly served was properly served through the Secretary through the of Secretary of State State and and attach attach an an affidavit of service affidavit of reflecting service service reflecting August 9, 2022. service on August respect to With respect 2022. With Defendants' "piercing the corporate Defendants' "piercing veil" argument, corporate veil" Plaintiffs argue argument, Plaintiffs argue that subject contract that the subject was contract was signed signed by Bond defective signatures the defective and the Bond and signatures were personally gathered, were personally collection their collection gathered, and their supervised, supervised, by Bond Bond and and defendant defendant Andrey Bystrov. Plaintiffs Andrey Bystrov. further assert Plaintiffs further that Bond assert that Bystrov and Bystrov Bond and committed fraud committed when they fraud when they submitted signatures for Plaintiffs fraudulent signatures submitted fraudulent Board of with the Board Plaintiffs to file with of Elections.

Elections. In addition, addition, Plaintiffs claims that Plaintiffs claims committed fraud Bond also committed that Bond fraud by convincing Plaintiff to convincing Plaintiff turn turn over over the only only copy copy of of the the designating designating petition depriving him petition depriving of a chance him of spec, reverse spec, chance to file a reverse entitling Plaintiff entitling treble and Plaintiff to treble punitive damages. and punitive Plaintiff alleges damages. Plaintiff alleges that Bystrov was that Bystrov aware of made aware was made of all the the communications communications between and Bond.

Plaintiff and between Plaintiff respect to their With respect Bond. With claims, negligence claims, their negligence Plaintiffs Plaintiffs argue argue that that Defendants ignore the fact that Defendants ignore required them contract required that the contract signatures obtain signatures them to obtain from registered democrats in District registered democrats 17. Plaintiffs District # 17. further assert Plaintiffs further that their assert that claim is negligence claim their negligence specifically pled specifically pled because because the complaint states the complaint that out states that of the 1,515 signatures out of collected by signatures collected Defendants, Defendants, only only 198 were were valid. valid. As to their breach of their breach contract claim, of contract Plaintiffs contend claim, Plaintiffs they that they contend that pled pled all the elements nonconclusory manner. elements in a nonconclusory Plaintiffs assert manner. Plaintiffs that (a) Defendants assert that advised Defendants advised Plaintiff Plaintiff that that they they would would not meeting the contracted not be meeting goal of contracted goal 1,700 signatures; of 1,700 court in the court signatures; (b) the the election election law law case case determined that 4 out determined that signatures collected of the 5 signatures out of were Defendants were collected by Defendants invalid; (c) the invalid; clerk's report the clerk's report issued Board of issued by the Board determined that Elections determined of Elections signatures some signatures that some were were not from from registered registered democrats democrats within District #17; within District Plaintiff hired and (d) Plaintiff #17; and vendor at a another vendor hired another cost cost of of approximately approximately $20,000 $20,000 to make Defendants' anticipated make up for Defendants' breach. anticipated breach.

In their their reply, reply, Defendants Defendants maintain that the maintain that should be dismissed complaint should the complaint and Bond and dismissed as to Bond Bystrov Bystrov because they cannot because they cannot be held liable. In addition, personally liable. held personally Defendants argue addition, Defendants that argue that Plaintiffs' Plaintiffs' complaint complaint and opposition are silent and opposition individual Defendants how the individual silent as to how abused the Defendants abused privilege privilege of of doing doing business the corporate business in the defendant Johnson Since defendant corporate form. Since this longer in this Johnson is no longer case, Defendants Defendants argue Plaintiffs cannot that Plaintiffs argue that cannot prove Bond and that Bond prove that and Bystrov exercised complete Bystrov exercised complete domination domination over over BB LLC. Defendants further LLC. Defendants argue that further argue none of that none the facts of the complaint alleged in the complaint facts alleged could could give give rise rise to the the independent independent tort of fraud. Moreover, tort of since Plaintiffs Moreover, since seek to plead Plaintiffs seek of cause of plead a cause action for negligence action negligence under under the same the alleged same facts for the breach of alleged breach of contract, Defendants assert contract, Defendants assert that that it is duplicative. duplicative. With With respect breach of Plaintiffs' breach respect to Plaintiffs' claim, Defendants contract claim, of contract that reiterate that Defendants reiterate the complaint complaint is silent the number silent as to the shifts deployed of shifts number of contains multiple and contains deployed and 2,437 references to 2,437 multiple references signatures gathered by Defendants, signatures gathered Defendants, which satisfy the contract. would satisfy which would contract. Defendants point out Defendants also point that that Plaintiff Plaintiff did did not not address their accord address their argument. In addition, satisfaction argument. accord and satisfaction argue Defendants argue addition, Defendants that that the contract contract does does not not guarantee that all or any stated guarantee that of signatures number of stated number deemed would be deemed signatures would valid valid or that Plaintiff would that Plaintiff Further, Defendants ballot. Further, qualify for the ballot. would qualify Defendants contend that during contend that during the subject petitioning subject senatorial district period, senatorial petitioning period, lines were district lines unconstitutional and ruled unconstitutional were ruled new lines and new had lines had to be drawn,4 drawn, 4 resulting resulting in uncertainty uncertainty that Plaintiff himself that Plaintiff the Election acknowledged in the himself acknowledged Action.

Election Action.

Court will The Court address Defendants' first address will first Defendants' motion dismiss the motion to dismiss against BB LLC action as against the action LLC under under CPLR 3211l(a)(8).

CPLR 321 In their (a)(8). In opposition, Plaintiffs their opposition, attached as an exhibit Plaintiffs attached of an affidavit copy of exhibit a copy affidavit of of service service on BB BB LLC LLC reflecting upon the Secretary service upon reflecting service of State Secretary of State on August 2022.

August 9, 2022.

Defendants' opposition does Defendants' opposition does not alone contest, address, let alone not address, contest, the presumption of the presumption proper service. of proper service.

Accordingly, Accordingly, the branch of the branch of Defendants' motion seeking Defendants' motion dismiss the seeking to dismiss complaint against the complaint BB LLC against BB LLC of personal lack of for lack denied. jurisdiction is denied. personal jurisdiction The Court Court next next turns turns to the portion Defendants' motion of Defendants' portion of seeking dismissal motion seeking under CPLR dismissal under CPLR 3211(a)(7). "On 3211(a)(7). "On a motion motion to dismiss the complaint dismiss the complaint pursuant CPLR 3211 (a) (7) for failure pursuant to CPLR failure to state a cause cause of of action, action, the the court must afford court must pleading a liberal the pleading afford the accept all facts as construction, accept liberal construction, alleged in the alleged the pleading pleading to be true, accord the plaintiff true, accord benefit of plaintiff the benefit every possible of every and inference, and possible inference, determine determine only only whether whether the the facts within any cognizable alleged fit within facts as alleged cognizable legal theory" (Breytman legal theory" (Breytman v

4 An order An order by by Justice Justice Patrick Patrick F. McAllister, dated May McAllister, dated 20, 2022, May 20, contained the 2022, contained official approved the official 2022 State approved 2022 Senate State Senate map (NY St Cts Elec map (NY Elec Filing [NYSCEF] Doc Filing [NYSCEF] Doc No. 670, decision No. 670, decision and Matter of order, in Matter and order, Harkenrider v Hochul, of Harkenrider Sup Hochul, Sup Ct, Steuben Steuben County, County, index index No. No. E2022-0116CV). Minor revisions E2022-0116CV). Minor were approved revisions were order dated approved in an order 2022, June 2, 2022, dated June which which did notnot impact Senate District impact Senate District #17 (NYSCEF Doc #17 (NYSCEF Doc No. 696, decision No. 696, and order, decision and Harkenrider). Thus, order, in Harkenrider). the Thus, the redistricting redistricting occurred occurred prior prior to the circulation period relevant circulation the relevant designating petitions period for designating (May 21, petitions (May June 10, 2022 to June 21, 2022 (NYSCEF Doc 2022) (NYSCEF 2022) Doc No. 524, order, No. 524, Harkenrider). order, in Harkenrider).

Olinville Realty, LLC, Olinville Realty, LLC, 54 AD3d AD3d 703, 703, 703-704 703-704 [2d Dept Dept 2008]).

2008]). "Where, "Where, as here, here, evidentiary evidentiary material material is submitted submitted and and considered considered on a motion motion pursuant pursuant to CPLR CPLR 3211 (a) (7), and and the motion motion is not not converted converted into into one one for summary judgment, the question summary judgment, question becomes becomes whether whether the the plaintiff plaintiff has has a cause of cause of action, action, not not whether whether the the plaintiff plaintiff has stated stated one, and unless unless it has has been been shown shown that that a material_ material fact claimed claimed by the the plaintiff plaintiff to be one one is not not a fact at all, and unless unless it can can be be said said that that no significant significant dispute dispute exists exists regarding regarding it, dismissal dismissal should should not not eventuate" eventuate" (YDRA, LLC LLC v Mitchell, Mitchell, 123 AD3d AD3d 1113, 1114 [2d Dept Dept 2014]).

2014]) . ·. The The Court Court will will discuss discuss this this portion portion of of Defendants' Defendants' motion motion in the the following following order: order: (1) breach breach of of contract contract against against all defendants; defendants; (2) breach breach of of contract contract against against individual individual defendants defendants by piercing piercing the corporate corporate veil; veil; and and (3) fraud fraud and and negligence. negligence.

A plaintiff plaintiff sufficiently sufficiently pleads cause of pleads a cause of action action for breach breach of of contract contract "by "by alleging alleging all of of the essential essential elements elements of of such such a cause cause of of action: action: the the existence existence of of a contract, contract, the the plaintiff's plaintiff s performance performance pursuant pursuant to that that contract, contract, the defendants' defendants' breach breach of of their their contractual contractual obligations, obligations, and damages damages resulting resulting from from that that breach" breach" (Canzona (Canzona v Atanasio, Atanasio, 118 AD3d AD3d 841,842 841,842 [2d Dept Dept 2014]).

2014]).

Here, Here, Defendants Defendants argue argue that that there there is documentary documentary evidence evidence refuting refuting Plaintiffs' Plaintiffs' claim claim as to their their performance, performance, pursuant pursuant to CPLR CPLR 3211 (a) (1). Defendants Defendants contendthat contend that they they sent sent three three invoices invoices to Plaintiff Plaintiff and on on the the third third and and final check, check, dated dated June June 13, 2022, Plaintiff 13,2022, Plaintiff wrote wrote "Petitions "Petitions Paid Paid in Full" Full" on the memo memo line. According According to Defendants, Defendants, this notation notation indicates indicates that that the the "transaction "transaction between between the the parties parties was was completed." completed." "While "While a court court may may consider consider evidentiary evidentiary material material submitted submitted by a defendant support of defendant in support of a motion motion to dismiss, dismiss, the the motion motion should should not not be granted granted unless unless this this evidence evidence shows shows 'that 'that a material material fact claimed claimed by the the plaintiff plaintiff to be one one is not not a fact at all, and and unless unless it can be said can be said that that no significant significant dispute dispute exists regarding it"' exists regarding it'" (Reznick (Reznick v Bluegreen Bluegreen Resorts Resorts Mgt., Inc., Inc., 154 AD3d AD3d 891, 892-893 892~893 [2d Dept Dept 2017]).

2017]). "As "As a general general rule, acceptance of rule, acceptance of a check check in full settlement settlement of of a disputed disputed unliquidated unliquidated claim claim operates operates as an accord accord and and satisfaction satisfaction discharging discharging the claim" claim" (Merrill Lynch Realty/Carll (Merrill Lynch Realty/Carll Burr, Jn_c. v Skinner, In,c. Skinner, 63 NY2d NY2d 590, 590, 596 [1984] [emphasis [emphasis added]). added]). Here, Here, while while Plaintiffs Plaintiffs may may have have acquiesced acquiesced to Defendants' provision of Defendants' provision of fewer fewer signatures signatures by signing signing the the check, check, there there is no evidence evidence that that Plaintiffs Plaintiffs waived waived any any right right with with respect respect to the the quality quality or validity validity of of the the signatures signatures since since that that issue was not issue not disputed disputed at the the time time the final check check was issued. issued.

Defendants' Defendants' argument argument that that the the contract contract provided provided that that 1,700 1,700 signatures signatures would would be collected collected or 95 total total shifts shifts deployed deployed is unconvincing unconvincing and belied belied by the the language language in the the contract, contract, which which provides provides that that 1,000 1,000 signatures signatures would would be collected collected through through 67 total total shifts shifts and and 700 signatures signatures would would be gathered gathered through bulk collection through bulk collection via via 28 total total shifts. shifts. "Through" "Through" and and "via" both share "via" both share a definition: definition: of.,,55 Plaintiff "by way of." Plaintiff sought sought to obtain obtain sufficient sufficient signatures signatures to ensure ensure his name name appeared appeared on the ballot. ballot. Thus, Thus, Defendants' Defendants' contention contention that that the the deployment deployment of of 95 shifts shifts alone, alone, without without the specified specified number number of of signatures, signatures, would would satisfy satisfy performance performance defies defies logic. logic.

Moreover, Moreover, the the contract provided that contract provided that BB LLC LLC would would direct direct canvassers canvassers to obtain obtain signatures signatures from registered registered Democratic Democratic voters voters within within District District #17. Plaintiffs' Plaintiffs' complaint complaint asserts asserts that that the Clerk's Clerk's Report Report dated dated June June 20, 2022, 2022, reflects reflects that that 956 signatures signatures were were invalidated because they invalidated because were they were collected outside of collected outside of the the district. district. Thus, Thus, even even assuming assuming Defendants Defendants delivered delivered at least least 1,700 signatures, signatures, Plaintiffs' Plaintiffs' complaint complaint sufficiently sufficiently pleads breach of pleads a breach of contract contract claim claim for failure failure to provide provide signatures signatures that that met met the the contractual contractual requirements. requirements.

The The Court Court now now turns turns to the portion of the portion of Defendants' Defendants' motion motion seeking seeking dismissal dismissal of of Plaintiffs' Plaintiffs' breach breach of of contract contract claim claim against against the the individual individual defendants defendants by piercing piercing the the corporate corporate veil. veil. "At "At the pleading stage, pleading stage, 'a 'a plaintiff plaintiff must must do more more than than merely merely allege allege that that [defendant] [defendant] engaged engaged in improper improper acts or acted acted in 'bad 'bad faith' faith' while while representing representing the the corporation"' (Cortlandt St. Recovery corporation'" (Cortlandt Recovery Corp. v Bonderman, 31 NY3d Bonderman, NY3d 30, 47 [2018], [2018], quoting Hampton Union Free quoting E. Hampton Free Sch. Dist. v Sandpebble Sandpebble Bldrs., Inc., 16 NY3d NY3d 775, 775, 776 [2011]). [2011]). "In "In order order for a plaintiff plaintiff to state state a viable viable claim claim against against a shareholder shareholder of of a corporation corporation in his or her her individual individual capacity capacity for actions actions purportedly purportedly taken taken on behalf of behalf of the corporation, corporation, plaintiff plaintiff must must allege allege facts facts that, that, if proved, indicate if proved, indicate that that the the shareholder shareholder exercised exercised complete complete domination domination and and control control over over the the corporation corporation and and abused abused the privilege of the privilege of doing doing business business in the the corporate corporate form form to perpetrate perpetrate a wrong wrong or injustice" Hampton Union Free injustice" (E. Hampton Free Sch. Dist., 16 NY3d Dist., NY3d at 776 [internal [internal quotation quotation marks marks and citation citation omitted]). omitted]).

Upon review of Upon review of the the complaint, complaint, the the Court Court finds that that Plaintiff Plaintiff has has not not alleged alleged that that Bond Bond and Bystrov Bystrov controlled controlled or dominated dominated BB LLC LLC or "that "that they they engaged engaged in acts acts amounting amounting to an abuse abuse of of the corporate corporate form form to perpetrate perpetrate a wrong wrong or injustice injustice against" against" Plaintiff Plaintiff (F&R Goldfish (F&R Goldfish Corp. v Furleiter, 210 AD3d Furleiter, AD3d 643,645 643,645 [2dDept2022]; [2d Dept 2022]; Victory Victory State Bankvv EMBA State Bank EMBA Hylan, Hylan, LLC, LLC, 169 AD3d AD3d 963, 966 [2d Dept Dept 2019]).

2019]). Moreover, Moreover, "individual "individual defendants defendants cannot cannot be held held liable liable for [the

55 See See Merriam-Webster.com Merriam- Webster. com Dictionary, Dictionary, through through (https://www.merriam-webster.com/dictionary/through); (https://www.merriam-webster.com/dictionary/through); via via (https://www.merriam-webster.com/dictionary/via). (https:/ /www.merriam-webster.com/dictionary /via).

Lastly, Lastly, the the Court Court addresses addresses Plaintiffs' Plaintiffs' fraud fraud and negligence causes of negligence causes of action. action. "[A] "[A] cause cause of of action premised upon action premised upon fraud fraud cannot cannot lie where where it it is based based on the the same same allegations allegations as the the breach breach of of contract claim" (Hejfez contract claim" (Heffez v L & G Gen. Constr., Inc., 56 AD3d AD3d 526, 527 [2d Dept Dept 2008]).

2008]). "A "A present present intent intent to deceive deceive must must be alleged alleged and and a mere mere misrepresentation misrepresentation of of an intention intention to perform perform under under the contract contract is insufficient insufficient to allege fraud" (WIT allege fraud" Holding Corp. v Klein, (WIT Holding Klein, 282 AD2d AD2d 527, 528 [2d Dept Dept 2001]; Refreshment Mgt. Servs., 2001]; Refreshment Servs., Corp. v Complete Complete Off Off. Supply Supply Warehouse Warehouse Corp., Corp., 89 AD3d AD3d 913, 914 [2d Dept 2011]). In his Dept 2011]). his complaint, complaint, Plaintiff Plaintiff makes makes a vague vague reference reference to "fraudulent "fraudulent activities" activities" and and asserts asserts that that Defendants' Defendants' alleged alleged false false representations representations included included (a) representing representing that that if if Plaintiff Plaintiff made made the payment in full, Defendants' the payment Defendants' services services would would be performed performed and completed completed in a timely timely manner manner in compliance compliance ~th New York with New York State State Election Election Law; Law; (b) representing representing that that the the signatures signatures collected collected were were valid; valid; and and ((c) c) promising promising to create create a reverse reverse spec. spec. With With respect respect to the first two two alleged alleged false false representations, representations, the the Court Court finds finds that that they they are premised premised on allegations allegations indistinguishable indistinguishable from from Plaintiffs' Plaintiffs' breach breach of of contract contract claim. claim. As to the the alleged alleged promise promise to conduct conduct a reverse reverse spec, spec, the the Court Court finds finds that that Plaintiffs Plaintiffs have have failed failed to state cause of state a cause of action action to recover recover for fraud fraud in the absence absence of of any any allegations allegations of of sci Crafton Bldg. Corp. v St. James enter ((Crafton scienter James Constr. Constr. Corp., Corp., AD2d AD2d 407, 407, 409 [2d Dept Dept 1995] ["[A] ["[A] cause cause of of action action based based upon upon a statement statement of of future future intention intention must must allege allege facts facts to show show that that the the defendant, defendant, at the the time time the promissory statements the promissory statements were were made, made, , . // never never intended intended to honor honor or act upon upon his statements."]). statements."]).

Where Where a complaint complaint purports purports to state state a claim claim alleging alleging negligence, negligence, "a "a simple simple breach breach of of contract contract is not not to be considered considered a tort tort unless unless a legal legal duty duty independent independent of the contract ofthe contract itself has been itse1fhas been violated" (Sargent violated" (Sargent v NY NY Daily Daily News, News, L.P., L.P., 42 AD3d AD3d 491,493 491,493 [2d Dept Dept 2007] 2007] [internal [internal quotation quotation marks marks and and citations citations omitted]). omitted]). In his his complaint, complaint, Plaintiff Plaintiff alleges alleges that that Defendants Defendants were were negligent negligent in failing failing to collect collect signatures signatures within within the the district, district, failing failing to verify verify that that signatures signatures were were collected collected of of registered registered democrats democrats and and failing failing to know know that that the the voters voters were were registered registered within within the the district. district.

However, However, these these allegations allegations do not not sound sound in negligence. negligence. As Plaintiff Plaintiff himself himself asserts asserts under under his negligence negligence cause cause of of action, action, these these allegations allegations demonstrate demonstrate a "failure "failure to abide their contractual abide by their contractual

71; emphasis added).

In sum, sum, the the Court that "the finds that Court finds allegations of "the allegations negligence and of negligence fraud are the and fraud those same as those the same underpinning breach of the breach underpinning the contract cause of contract of action, cause of and 'allege[ action, and nothing more 'allege[ ] nothing than a breach more than of . breach of contract covenants implied'" breach of] any covenants contract and [a breach (Heffez, 56 AD3d implied' " (Heffez, 527, quoting AD3d at 527, NY Univ. quoting NY Univ. v 308,318 [1995]).

NY2d 308,318 Cont. Ins. Co., 87 NY2d [1995]). Thus, the branch Thus, the Defendants' motion of Defendants' branch of dismiss the motion to dismiss fraud and negligence fraud and causes of negligence causes action is granted. of action granted. hereby Accordingly, it is hereby Accordingly, ORDERED, ORDERED, that that Defendants' motion (Mot.

Defendants' motion granted to the extent No. 1) is granted (Mot. Seq. No.1) that extent that Plaintiffs' fraud Plaintiffs' fraud and negligence causes and negligence dismissed and Plaintiffs' action are dismissed of action causes of Plaintiffs' breach of contract breach of contract claim against claim Bond and against Bond Bystrov is dismissed. and Bystrov dismissed. issues not other issues All other addressed herein not addressed without merit herein are without moot. merit or moot.

This constitutes This the decision constitutes the order of and order decision and the Court. of the Court.

Hon. Ingrid Hon. Ingrid ph, J.S.C. ph, l.S.C. Han. Ing 1d Hon. Joseph ,d Joseph Supreme Court Supreme Justice Court Justice