Charles Pavarini III Design Assoc., Inc. v Caplan

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Charles Pavarini III Design Assoc., Inc. v Caplan 2012 NY Slip Op 30380(U) February 15, 2012 Supreme Court, New York County Docket Number: 102604/11 Judge: Emily Jane Goodman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] ION212112012 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: Hon. EMILY JANE GOODMAN, Justice INDEX NO. V. MOTION SEQ.NO. &/ MOTION CAL. NO. The followlng papers, numbered 1 to Notlce of MotlonlOrder to Show Cause Anewerlng Affldavlts were read on thls motion tolfor -Affidavits- papar$ Numbered Exhlblts 67 - Exhlblts J-4 Replylng Affldavlts :ross-Motion: /--5 0Yes @ NO Upon the foregoing papers, It is ordered that this motion * I FILED ited: ?/\(//& New Yor , New York Check one: .......................................... EMILY JANE GO 0Case Dlsposed Non-Flnal Dlrrposltlon Check as Approprlate: .......Motion is: 0Granted -@ Denled 0 Granted In Part Other 0Settle Order Submlt Order Yheck If Approprlate: ......................... Do Not Post 0 Flduclary Appointment 0 Reference [* 2] SUPREME COURT O F THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 17 - l " - _ " l l _ - - - _ _ _ _ _ _ _ _ _ - - - - - I - - - ~ - - - - - - - - - -X CHARLES PAVARINI I11 DESIGN ASSOCIATES, INC., Plaintiff , Index No.: 102604/2011 -againstPECISIQN & ORDER DAVID CAPLAN and MARIA CAPLAN, Defendants. FILED - -X _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _ I _ _ _ _ _ _ _ _ _ _ _ _ _ I I FEB 2 12012 Emily Jane Goodman, J. t contract and for quantum meruit. Defendanta move to dismiss, pursuant to CPLR 321l(a)(7), on the ground that they were n o t parties to the contract; and in the alternative, they move to change venue to Dutcheas County, New York, pursuant to CPLR 503, on the grounds of improper venue and witness inconvenience. The motion is decided as follows. Defendants David and Maria Caplan ( t h e Caplans) are the principals of AristaData, Inc. (AristaData), a company, which own^ property in Dutchess County known as 42 Altamont Road, Millbrook, New York (the Property) . Plaintiff Charles Pavarini b I11 Design Associates, Inc. (Pavarini) alleges that i n March 2009, it entered into an oral agreement w i t h t h e Caplans to provide interior design services and home furnishing to the Property. It claims t h a t it did the work, but the Caplans have not paid the balance of $116,503.15 that is due and owing. brought this action in March 2011. It [* 3] Separately, in December 2009, AristaData initiated an action in Dutchess County against Pavarini and Charles Pavarini 111, individually (AristaData v. Charleis P a v a r i n i 111 Design Associates, Inc., Index No. 10118/2009 [Sup Ct, Dutchess Co. ZOOS] [hereioafter the AristaData Action]), based on the identical facts alleged herein; except that in the AristaData Action, it alleges that it, not the Caplans, entered into the agreement with Pavarini, and that Pavarini was negligent In the performance of its work and AristaData waB financially harmed as a result of that negligence (ArirstaData Complaint, Caplan Aff., Ex. A). Pavarini answered in that action, but did not interpose counterclaims or implead the Caplans. Discovery haa commenced I there. I pismissal Defendants motion to dismiss, despite describing a failure to state a cause of action, is actually one based on b documentary evidence (CPLR 3211[a][1]). The Caplans supply evidence showing that the property that Pavarini contracted to work on was owned by AristaData and that the work was paid for by checks drawn from AristaData's accounts (Caplan Aff., Ex. E & F). The Caplans also supply an unsigned written contract, admittedly drafted subsequent to the commencement of work, that names AriataData and Pavarini as the parties (id., Ex. G ) . They argue that this evidence establishes that they are improper parties to 2 [* 4] this action, as they were not direct parties to the contract. Plaintiff opposes the motion by supplying t w o prior drafts of the unsigned written contract that named the defendants as parties to the contract, several ernails written directly by defendants in their individual capacities that discuas the work being done (Epstein Aff., E x . B ) , and invoices directed to the Caplans individually (id., Ex. C) . Finally, Mr. Pavarini avers that the Cap$ans used the Property as their personal home. A motion to dismiss based on documentary evidence may be appropriately granted "only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v M u t u a 1 Life Ins. Co. of New York, 9 8 NY2d 314, 326 [2002]), The evidence c, supplied is inconclusive, and does not establish, as a matter of law, that the Caplans, individually, did not enter into the oral contract, Accordingly, it cannot be said that t h e complaint does not state a cause of action against them. Next, t h e Caplans argue that the quantum meruit claim should be dismissed because the parties do not dispute that a contract exists. This argument is unpersuasive at t h i s point because it cannot be said that there was, in fact, a c w t r a c t between the parties. . Accordingly, the branch of the defendants' motion seeking to dismiss the complaint is denied. 3 [* 5] 2. Venue The Caplans seeks to transfer venue to Dutchess county ~ on the grounds of improper venue (CPLR 510[1]), and for the convenience of witnesses and the ends of justice (CPLR 510[31). Pavarini correctly argues that venue was prima facie valid under CPLR 503 because it has an office at 2 4 3 West 98TH Street, in Manhattan (Complaint, 7 1). Next, the Caplans' arguments regarding the convenience of material witnesses is supported only by a bare conclusory statement, and is unpersuasive (see e. g , O'Brien v Vaaaar Brothers Hospital , 207 b AD2d 169 [2nd Dept 19951 1 . Finally, in reply, the Caplana argue t h a t the ends of j u s t i c e would not be met because it is a waste of judicial resources for the parties to litigate two separate matters involving the exact same set of facts. While this may be correct, it is not a ground for a change of venue under CPLR 510, and, notably, the Caplana do not seek to consolidate or transfer the action under CPLR 602, where such an argument might be persuaaive. In light of the foregoing, it is hereby ORDERED that the motion is denied; and it is further ORDERED that the defendanta are d i r e c t e d to serve an answer to the complaint within 20 days after aervice of a copy of this order with notice of entry; and it is further 4 [* 6] ORDERED that counsel f o r t h e parties appear for a v1 *7 preliminary conference on M y 7 , 2 0 1 2 , a t 10:00, a 4 g k n t r e Street, New York, NY 10007. Dated: February IC 2012 ENTER : I /7 FILED FEB 2 12012 RK'S OFFICE J.S.C. EMILY JANE GOODMAN 5

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