Boutsouris v ENP Gen. Constr. Corp.

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Boutsouris v ENP Gen. Constr. Corp. 2010 NY Slip Op 33758(U) December 23, 2010 Supreme Court, Nassau County Docket Number: 2379/10 Judge: F. Dana Winslow 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] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. F. DANA WINSLOW, Justice TRIAL/IAS, PART 3 ELENI BOUTSOURIS and SPIRIDON BABASSIKAS, NASSAU COUNTY Plaintiffs, -againstENP GENERAL CONSTRUCTION CORP. a/ka ENP GENERAL COONSTRUCTION CORP., MOTION SEQ. NO. : 001 MOTION DATE: 10/5/11 INDEX NO. : 2379/10 Defendants. The following papers having been read on the motion (numbered 1Noti ce of M 4): oti 0 D............. .... ... Affirma tio n in Op position....................................................................... M em 0 ran dum of Law................. ......... ....... ................... Reply Affirma ti 0 n.......................................... ........................................... Motion pursuant to CPLR 93211(a)(7) by the defendant ENP General Construction Corp. , aJa ENP General Coonstruction Corp. for an order dismissing the plaintiffs complaint. In late December of 20 1 0 , the plaintiffs Eleni Boutsouris and Spirdon Babassikas plaintiffs commenced the within action as against ENP General Construction Corp. The action arises out of certain renovations made by the defendant to the plaintiffs ' Queens County residence (Cmplt., " 5- 10). The verified complaint contains eight separately pleaded , accounting, causes of action , including claims sounding in breach of contract, negligence unjust enrichment , conversion, fraud , prima facie tort and "reasonable reliance Upon receipt of the summons , the defendant thereafter fied a notice of appearance dated Januar 31 , 2001 , which was allegedly post-marked Februar 9 2011 and received by the plaintiffs on or about February 11 2011 (Aranitakis Aff. , Exhs. A" It is undisputed that the defendant' s responsive pleading was therefore due on or before March 19, 2011 , and that the defendant did not serve its answer within that period , 2011 , the (Aranitakis Aff., " 17- 18; Davis Reply Aff., ' 3- 4). Rather , on or about April 4 defendant noticed a motion to dismiss the complaint pursuant to CPLR 93211(a)(7). According to defense counsel , however , he contacted plaintiffs counsel and timely requested an extension of the defendant's time to serve an answer - which request was [* 2] 5). allegedly granted for a period of " approximately one month" (Davis Reply Aff., " 4Apar from the counsel' s assertions, however , there is no written document evidencing the claim that the extension was granted by opposing counsel. Thereafter , and at the request of plaintiffs ' counsel , defense counsel consented to a ' time to serve opposing papers - which papers were series of adjourents of the plaintiffs ultimately served in September of 20 11 , some five months after the motion was originally 12). noticed (Davis Reply Aff. inter alia that: (1) In moving to dismiss the foregoing claims , the defendant contends the breach of contract claim is defective since the plaintiffs have not attached the written - and merely agreement relied upon; (2) the tort claims are substantively duplicative of restate - the underlying breach of contract claim; and (3) the accounting, unjust enrichment and reasonable reliance causes of action are similarly defective as a matter of law. that the In opposition to the motion , the plaintiffs preliminarily contend ' time to answer had motion to dismiss is untimely because it was made after the defendants already expired. The motion should be granted to the extent indicated below. It is true that a motion pursuant to CPLR 93211(a)(7) "may be made at any subsequent time or in a later pleading * * *" (CPLR 93211(e)), and that a stipulation which extends the time to answer a complaint generally extends the time to move pursuant to CPLR NJ., 291 Lejkovits 56 NY2d 276 2009 WL 1725807 Misc.3d. Dean Elec. Co., Inc. , a motion to dismiss made after a (Supreme Court, New York County 2010)). However inter alia, 280 (1982); v. 93211 (Rich Port Auth. of NY. v. Redlyn Elec. Corp. AD2d 554; Tatar Pach Manhattan Real Estate Equites Group see also, 30 AD2d 707 (Smith defendant's time to answer has expired is untimely LLC v. Pine Smith 100 AD2d 585, 586; Misc.3d -' 2005 WL 5351322 (Supreme Court , New York County Equity NY, Inc. 2005), aff' d, 27 AD3d 323). Wenz Nevertheless , the Court possesses authority to extend the relevant time period in the interests of justice , where - as here - the delay was brief, a reasonable excuse has been see also, (see supplied , and there is no showing of Alexander , Practice Commentaries, McKinney s Cons. Laws of N. , Book 7B, CPLR 2004 , 2010 WL 4941999, at 2 (Supreme Court Misc.3d Noble, Inc. at 691Horowitz 88 AD3d 992 Selinger Giannos Enterprises, Inc. 69 AD3d 564 , 565). It bears noting that the paries conduct in prosecuting the action is consistent with defense counsel' s assertions that an CPLR 92004 wilfulness or prejudice Brown 692; New York County 2010) 993; Giha v. see generally, Zeccola , LLC v. v. extension had , in fact , been granted. Turning to the substance of the defendant's motion , and accepting as true , the facts (ABN AMRO Bank, alleged in the complaint and submissions in opposition to the motion ," [* 3] MBIA Inc. Martinez 84 NY2d 83 87- 88 (1994)), the (see generally, Clearmont Eisner 58 AD3d 1052 , 1055). Nor is dismissal as a matter oflaw warranted because the actual , written contract was not annexed to the plaintiffs ' verified complaint although it has now been attached to the plaintiffs ' opposing papers. However, the plaintiffs remaining causes of action should be dismissed. Specifically, the Court agrees that: (I) there are absent allegations establishing the requisite fiduciar duty Sawaya, 79 AD3d 1095 1096Prime Time Transp., Inc. 45 AD3d 616 617); (2) the unjust enrichment cause of action is defective since there exists a valid contract governing 12 NY3d 132 Valentino AD3d 2011 WL 6825911 (2 Dept. 2011)); and (3) the plaintiffs ' prima facie tort allegations do not pleador otherwise support an inference - that the defendant's alleged misconduct was solely the Club Managers Ass n of America, Inc. 84 AD3d 928 84 AD3d 725 see Suozzi 63 NY2d 113 Burns Jackson Miler Summit Lindner 59 NY2d 314 , 332 (1983)). Similarly, the conversion and negligence causes of action are duplicative of the underlying breach of contract claim. It is settled that " a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated" (Clark-Fitzpatrick Long Is. R. R. Co. 70 NY2d 382 LHR Mobile USA , Inc. 88 AD3d 1301 , 1303- 1304), and relatedly, that " a claim of conversion canot be N V v. Leon 17 NY3d 208 (2011); v. first (breach of contract) action states a cause of action as pleaded Prop., LLC required to support the accounting cause of action 1097; the same subject matter 142 (2009); v. Akkaya (IDT Corp. A. Montili Plumbing (East End Laboratories, Inc. v. Morgan Stanley Dean Witter Heating Corp. Co., v. product disinterested malevolence within the meaning of relevant case law (Shaw 930; v. generally, Curiano Spitzer Ford v. Fink, v. , 728 , 117 (1984); v. , Inc. predicated on a mere breach of contract" 390 (1987); (MBL Life Assur. Corp. , Inc. v. 555 v. Realty Co. , 240 AD2d 375 376Sawaya, supra 79 AD3d 1095 1096). Here , the plaintiffs ' negligence and the sparsely pleaded conversion claims do not allege or properly identify an independent duty springing from " circumstances extraneous to and not constituting elements of' the paries 555 Realty Co. , supra 240 AD2d 375). Rather, and to the extent relevant , the complaint alleges instead that the negligence- based tort duty relied upon arose " by virte of the underlying contract" (Cmplt. 43- 44)(see , East End Laboratories Sawaya, supra AD3d 1095 , 1096). Lastly, the defendant has established its entitlement to dismissal of the fraud and reasonable reliance " claims - which are themselves duplicative and/or redundantly pleaded (Cmplt. , " 61- 67; 71- 77). To sustain a cause of action predicated upon a fraudulent misrepresentation a plaintiff must allege ' a misrepresentation or a material omission of fact 377 see also, East End Laboratories, Inc. v. ' written agreement (MBL Life Assur. Corp. , Inc. v. ," '" ," g., [* 4] which was false and known to be false by defendant , made for the purpose of inducing the other par to rely upon it, justifiable reliance of the other par on the misrepresentation or material omission , and injury Wildenstein 16 NY3d 173 , 178 quoting from 88 NY2d 413 see Kissel 12 NY3d 553 Louise Wise Servs. , Inc. 8 NY3d 478 488 (2007)). Moreover (a) cause of action premised upon fraud canot lie where it is based on the same allegations as the breach of contract claim Gen. Constr. , Inc. , 56 AD3d 526 see also, Niagara Foods Ferguson Elec. Service Co. , Inc. 86 AD3d 919). Nor wil a fraud claim lie when a complaint merely asserts that a defendant misrepresented its intention to perform in the futue under the Complete Offce Supply Warehouse Corp. see also, High Tides DeMichele AD3d 954). Here , the plaintiffs ' fraud claims contain vague averments that the defendants made unspecified false promises and assurances to the plaintiffs and that the defendat misrepresented its intent to perform under the paries (e. Cmplt. " 65- 66; 71, 75)(see generally, High DeMichele , supra 85 AD3d 904 Baxter 79 AD3d 814). These inconclusive averments neither plead a clai grounded upon fraud, nor establish the violation of a separately existing tort duty independent of those already imposed by the paries (see Sagona 85 AD3d 904 Linden Realty, LLC 68 AD3d 755 , 758). It also bears noting that within the factual context presented here reasonable reliance (e. Seward & Kissel, LLP, supra 12 NY3d 553 , 559), and does not support an independent cause of action as pleaded here. The Cour has considered the paries ' remaining contentions and concludes that they are lacking in merit. The defendant shall serve its answer in accordance with the provisions of CPLR (Mandarin Trading Ltd. (2011), v. , Lama Holding Co. v. also, Eurycleia Partners, LP v. Smith Barney, Seward 421 (1996) , LLP, , 559 (2009); (Heffez , 527 , Inc. Ross & G v. contract 89 AD3d 877 (Baer , LLC v. v. ' agreement Tides, LLC Sagona, 906; v. 88 AD3d 954; Venables Hense ' underlying contract Venables v. " comprises an element of a fraud claim , 906; Yenrab, Inc. v 794 g., Eurycleia Partners, LP v. 93211 (f). Accordingly, it is ORDERED that the motion by the defendant ENP General Constrction Corp. ENP General Coonstrction Corp. , is granted to the extent that the second through e causes of action are dismissed , and the motion is otherwise denied. This constitutes the Order of the Cour. ENTERED JAN 24 2012 NASSAU COUHT\' COUNTY CLERK' S OFFtCf a/a

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