Cumberland Farms, Inc. v Raisch

[*1] Cumberland Farms, Inc. v Raisch 2012 NY Slip Op 52027(U) Decided on October 24, 2012 Supreme Court, Queens County Markey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 24, 2012
Supreme Court, Queens County

Cumberland Farms, Inc.

against

Kenneth Lee Raisch, et al.



30121/2010



For the Plaintiff: McCusker, Anselmi, Rosen & Carvelli, P.C., by Michael R. Futterman, Esq., 805 Third Ave., New York, New York 10022

For the Defendants: Friedland Laifer & Robbins, LLP, by Eugene P. Hanson, Esq., 62 William Street, New York, NY 10005

Charles J. Markey, J.

The following papers numbered 1 to 10read on this renewed motion by defendants to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7).

Papers Numbered

Notice of Motion - Affidavits - Exhibits ........................................................................ 1-7

Answering Affidavits - Exhibits .................................................................................... 8-10

The Court notes that, as directed by decision dated July 21, 2011, defendants have renewed this motion after substitution of the legal representative of decedent Mary Louise Mannix was effected pursuant to CPLR 1015(a).

This is an action to recoup $94,847.44 in real estate taxes which plaintiff-lessee alleges it inadvertently paid on behalf of defendants-lessors after the expiration of the lease for commercial property. Plaintiff asserts causes of action for breach of contract, breach of covenant of good faith and fair dealing, unjust enrichment, conversion, and overpayment on contract recovered. Defendants argue on this motion to dismiss that plaintiff's environmental re-mediation of the property extended beyond the expiration of the lease thereby creating a holdover tenancy which included payment of real estate taxes.

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only if [*2]the documentary evidence submitted utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law (see, Integrated Constr. Servs., Inc. v Scottsdale Ins. Co., 82 AD3d 1160 [2011]; Granada Condominium III Assn. v Palomino, 78 AD3d 996 [2010]; Fontanetta v John Doe 1, 73 AD3d 78[2010]; Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314 [2002]).

In the case at bar, the documentary evidence put forth, including the lease, does not conclusively dispose of the plaintiff's breach of contract claims against defendants. Specifically, the lease terms do not determinatively establish that a holdover tenancy was created or that defendants were entitled to retain the real estate taxes after the lease expired (see, Yenrab, Inc. v 794 Linden Realty, LLC, 68 AD3d 755 [2009]).

In determining a motion to dismiss pursuant to CPLR 3211 (a) (7), the Court must afford the pleading a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Feldman v Finkelstein & Partners, LLP, 76 AD3d 703 [2010]; see, Sokol v Leader, 74 AD3d 1180 [2010]; Leon v Martinez, 84 NY2d 83 [2010]).

With respect to the second cause of action for breach of covenant of good faith and fair dealing, although every contract contains an implied covenant of good faith and fair dealing (see, Wieder v Skala, 80 NY2d 628, 634 [1992]; Rowe v Great Atl. & Pac. Tea Co., 46 NY2d 62 [1978]; Aventine Inv. Mtg. v Canadian Imperial Bank of Commerce, 265 AD2d 513 [1999]), a cause of action alleging breach of the implied covenant of good faith and fair dealing must be dismissed if it is merely duplicative of a breach of contract claim (Refreshment Mgt. Servs., Corp. v Complete Off. Supply Warehouse Corp., 89 AD3d 913 [2011]). Herein, as pleaded in the complaint, the cause of action alleging breach of the implied covenant of good faith and fair dealing is duplicative of the cause of action alleging breach of contract (see, Baer v Complete Off. Supply Warehouse Corp., 89 AD3d 877 [2011]; Barker v Time Warner Cable, Inc., 83 AD3d 750 [2011]; Deer Park Enters., LLC v Ail Sys., Inc., 57 AD3d 711 [2008]). Similarly, plaintiff's fifth cause of action for overpayment on contract recovered is duplicative of its breach of contract claim.

With respect to the third cause of action for unjust enrichment, the existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter. A quasi contract only applies in the absence of an express agreement, and is not really a contract at all, but rather a legal obligation imposed in order to prevent a party's unjust enrichment (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382 [1987]; see, Neos v Lacey, 2 AD3d 812 [2003]). Since the lease governs when real estate taxes are due, and the plaintiff's cause of action alleging unjust enrichment arises out of the same subject matter, the cause of action alleging unjust enrichment must be dismissed (see, Neos v Lacey, 2 AD3d at 814).

With respect to the fourth cause of action for conversion, a claim to recover damages for [*3]conversion cannot be predicated on a mere breach of contract (see, Priolo Communications v MCI Telecommunications Corp., 248 AD2d 453 [1997]; MBL Life Assur. Corp. v 555 Realty Co., 240 AD2d 375 [1997]). Since the plaintiff's conversion claim does not stem from a wrong which is independent of the alleged breach of the lease agreement, it must be dismissed (see, Wolf v National Council of Young Isr., 264 AD2d 416 [1999]).

Accordingly, upon the foregoing papers, defendants' motion to dismiss is granted only to the extent that plaintiff's second, third, fourth, and fifth causes of action are dismissed. The defendants' motion to dismiss is denied as to plaintiff's first cause of action.

The foregoing constitutes the decision, opinion, and order of the Court.

_______________________________

J.S.C.

Dated: October 24, 2012