Flakowitz v Levy

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Flakowitz v Levy 2013 NY Slip Op 32081(U) September 4, 2013 Supreme Court, New York County Docket Number: 114700/09 Judge: Paul Wooten Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SCANNED ON 91612013 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY HON. PAUL WOOTEN PART 7 Justice HANNON MAER, et al., - against- 114700/09 INDEX NO. Plaintiffs, 002 MOTION SEQ. NO. YAIR LEVY, YL RECTOR STREET LLC, YL MANAGER LLC, YL MANAGMENT LLC, YL REALTY INC., YL REAL ESTATE DEVELOPERS, YL RECTOR HOLDINGS I LLC. YL RECTOR HOLDINGS II LLC, YL RECTOR HOLDINGS 111 LLC, SHVO MARKETING, COOPER SQUARE REALT$ INC., . Defendants. PAPERS NUMBERED f Motion/ Order t o Show Cause -Affidavits - Exhibits ... ering Affidavits - Exhibits (Memo) This is an action brought by Pamela Ellen Flakowitz, Ludhfia Portnoy, Mendel Portnoy, non Maer, et al. (collectively, plaintiffs) seeking money damages for alleged negligence, , conversion, and misappropriation relating to construction work done at 255 Rector Place, ismissal of the complaint as asserted against it, on the basis that there is no factual or legal ground for the cause of action interposed against it. Plaintiff has responded in opposition to this Page 1 of 8 [* 2] BACKGROUND Plaintiffs are occupants and/or owners of units within the Subject Premises. On or iI 4, 2007 non-parties American Flooring and NTD Construction Corp. (NTD or eneral Contractor) entered into a contract wherein American Flporing was to, inter alia, install oring, supplied by the owner, in the Subject Premises (Notice of Motion, exhibit C). As ult of the flooring work and other construction done at the Subject Premises, plaintiffs enced this action by the filing of a Summons with Notice, on or about October 20, 2009. uently, High Rise contracted with two plaintiffs, Maria Rapetskaya (Rapetskaya) on ber 19, 2009 to repair a section of damaged hardwood flooring in her unit, and with Brian i (Gallozzi) on July 29, 2009 to inject, wax, and buff 350 square feet of Gallozzi s wood flooring (Notice of Motion, exhibit E). On October 27, 2010 American Flooring went Plaintiffs filed an Amended Summons and Verified Complaint on November 19, 2009, their First Cause of Action asserted against High Rise alleges that High Rise was d by defendant YL Rector Street LLC, sponsors of Subject Premises, and/or general ctor of the Subject Premises to install flooring through the premises, including but not d to the plaintiffs individual units (Verified Complaint at fl229). Plaintiffs further allege that High Rise negligently abandoned the contracted-for work without completing same, and ently installed the wrong type of flooring including but not limited to the plaintiffs individual ch that the flooring is coming up and mis-leveled creating a trip hazard (Verified int at fl 230 -232). Plaintiffs allege this negligence and breach of contract have caused ffs to sustain economic losses of no less than one hundred million ($100,000,000.00) Now before the Court is a motion by High Rise pursuant to CPLR 321 1 and/or 3212, eeking dismissal of the First Cause of Action asserted against itpn the basis that: (1) High Page2of 8 [* 3] Rise was not a party to any contract between American Flooring and the General Contractor with respect to the work allegedly performed at the Subject Premises as alleged in the complaint and did not perform the installation work as alleged, (2) there was no contract between High Rise and the plaintiffs in this case, and (3) High Rise cannot be held liable for the alleged negligent performance of a construction contract as a matter of law (Affirmation in STANDARDS When determining a CPLR 321 l(a) motion, we liberally construe the complaint and pt as true the facts alleged in the complaint and any submissions in opposition to the a motion (577 W, 232nd Owners Corp. v JenniferRealty Co., 98 NY2d 144, 151-152 1 see Leon v Martinez, 84 NY2d 83, 87 [I 9941; Sokoloff v Harriman Estates Dev. Corp., NY2d 409 [2001]; Wieder v Skala, 80 NY2d 628 [1992]). To defeat a pre-answer motion to 1 - smiss pursuant to CPLR 321 1, the opposing party need only assert facts of an evidentiary e that fits within any cognizable legal theory (see Bonnie & Co. Fashions v Bankers Trust 62 AD2d 188 [I Dept 19991). Further, the movant has the burden of demonstrating st based upon the four corners of the complaint liberally construed in favor of the plaintiff, the ing states no legally cognizable cause of action (see Guggenheimer v Ginzburg, 43 NY2d 1; Salles v Chase Manhattan Bank, 300 AD2d 226 [Ist Dept 20021). Pursuant to CPLR 3211(a)(l), in order to prevail on a motion to dismiss based on tary evidence, the documents relied upon must definitively dispose of plaintiff s claim nxville Knolls v Webster Town Ctr. Partnership., 221 AD2d 248, 248 [Ist Dept 19951; as v 325 W. End Ave. Corp., 127 AD2d 476 [Ist Dept 19861). A CPLR 321 l ( a ) ( l ) motion 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 Mut. Life NY2d 314. 326 [2002]; see also Sempra Energy Trading c o . V B P Prods. N. Am., Page3of 8 [* 4] D3d 350, 350 [Ist Dept 20081 [holding that it was proper for the complaint to be dismissed because the documentary evidence refuted the plaintiff s allegations for breach of Summary judgment is a drastic remedy that should be granted only if no triable issues of t and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The party for summary judgment must make a prima facie showing of entitlement to judgment as of law, tendering sufficient evidence in admissible form demonstrating the absence of sues of fact (see Winegrad v New York Univ. Med. Cfr., 64 NY2d 851, 853 [1985]; [b]). The failure to make such a showing requires denial of the motion, regardless iciency of the opposing papers (see Smalls v AJl lndus., lnc., 10 NY3d 733, 735 ce a prima facie showing has been made, however, the burden shifts to the ing party to produce evidentiary proof in admissible form sufficient to establish the af material issues of fact that require a trial for resolution (Giuffrida v Cifibank NY2d 72, 81 [2003]; see also Zuckerman v City of New York, 49 NY2d 557, 562 hen deciding a summary judgment motion, the Court s role is solely to determine if issues exist, not to determine the merits of any such issues (see Sillman v Twentieth film Corp., 3 NY2d 395, 404 [1957]). The Court views the evidence in the light ble to the nonmoving party, and gives the nonmoving party the benefit of all inferences that can be drawn from the evidence (seefiegri v Stop & Shop, Inc., 65 625, 626 [1985]). If there is any doubt as to the existence of a triable issue, summary should be denied (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [ I 978)). DISCUSSION support of its motion, High Rise contends that the First Cause of Action asserted Page 4 of 8 [* 5] against it should be dismissed because plaintiffs have no privity of contract with High Rise. High Rise further proffers that it cannot be held liable as it was not a party to the contract for the on of flooring at the Subject Premises. In opposition, plaintiffs contend that High Rise was a party to the contract relating to the installation work done at the Subject Premises, and is liable for the floor work done e they assumed liability after American Flooring dissolved. Plaintiffs also proffer that se should be held liable for the flooring contract between American Flooring and the ral Contractor on the basis that American Flooring and High Rise are alter-egos of each / laintiffs support their claim for successor liability by putting forth evidence of ping ownership, alleging Brian Murphy (Murphy) is the sole owner of both entities and t both entities share the same address (see Affirmation in Opposition, exhibit A). The Court t plaintiffs do not assert the successor liability theory in their complaint, nor do intiffs cross-move to amend the Complaint to allege successor liability. The Court finds that High Rise has met its prima facie burden of establishing its ement to dismissal as a matter of law. In turning to plaintiffs opposition, plaintiffs have prove High Rise was a party to the flooring contract at the Subject Premises or that has any type of successor liability to American Flooring. Plaintiffs do not put forth any contracts between the general contractors and High Rise for the flooring installation work, tside evidence that High Rise performed the work as alleged in the complaint. nder New York Law, an assignee or successor will not be bound to the terms of a raet absent an affirmative assumption of the duties under the contract (Amalgamated Tr a/ 7 781,AFL-C/O v City of New York, 45 AD3d 788, 790 [2d Dept 20071; A ~ ~ ~ I - v O I J S & H.R. Co., 132 AD 183, 183 [I Dept 19091 [ in the absence of express contract, st ignee of a personal contract is not liable on the covenants of his assignor ]). Here, has failed to put forth sufficient evidence to show High Rise assumed duties under the Page5of 8 [* 6] contract between NDR and American Flooring, or that High Rise is an alter ego of American Flooring (see Worldcom Network Sews. v Polar Communications Corp., 278 AD2d 182 [ 1st ept 20001 [evidence that three individuals who formed the original company who were er employed by another company, is insufficient to infer a relationship between the two panies, much less a relationship sufficiently close to serve as a predicate for the imposition successor liability]). Although High Rise signed individual contracts with two plaintiffs, Rapetskaya and ozzi, to do limited repair and waxing work in their individual units, these contracts are not for nstallation of wood flooring, and the contracts do not create privity of contract between all aintiffs and High Rise for the claims put forth in the First Cause of Action. Additionally, these s were not signed until after this action was commenced. It is well established that absent privity of contract, plaintiff has no right to recover from defendant [for] breach of t (Residential Board of Mangers o Zeckendorf Towers v Union Square - 14thStreet f s, 190 AD2d 636, 637 [I Dept 19931; see Pevensey Press v Prentice-Hall, lnc., 161 st 500 [I Dept 19901; CDJ Builders Corp. v Hudson Group Const. C o p , 67 AD3d 720 [2d st 20091 [ liability for breach of contract does not lie about absent proof of a contractual ationship or privity between the parties ]). /- Moreover, plaintiffs here have not alleged that they are third-party beneficiaries to the ct between the General Contractor and American Flooring for the flooring work at the Premises. Further, with respect to construction contracts, Generally it has been held that the ordinary construction contract-Le., one which does not expressly state that the intention of the contracting parties is to benefit a third party-does not give third parties who contract with the promisee the right to enforce the latter s contract with another. Such third parties are generally considered mere incidental beneficiaries (Port Chester Elec. Const. Corp. v Atlas, 40 NY2d 652, 656 [I9761 citing Cerp Const. Co v J. J. Cleary, Inc., 59 Misc2d 489 [Sup Ct, Kings County 19681; International Erectors v Wilhoit Steel Erectors & Page6of 8 [* 7] Rental Sew., 400 F2d 465 [5th Cir 19681; Watson v American Creosote Works, 84 P2d 431 [Okla Sup Ct 19381; see 4 Corbin, Contracts, 5 779D). is no privity of contract between plaintiffs and High Rise, and it was not expressed that were intended third-party beneficiaries, High Rise has a defense as a matter of law. , addition to breach of contract, High Rise avers that the plaintiffs do not have a cause for negligence against High Rise as it is well settled that a simple breach of contract ot also be construed as a tort if the allegation is not independent of the contract lark-f-itzpatrick v Long Island Rail Road Company, 70 NY2d 382, 389 [1997]; see also v Gimbel Brothers, 172 AD2d 209 [Ist Dept 19911 [court held there was no cause negligent performance of [a] contract ]; see also Rezu Enterprises, Inc. v lsanim, 7 [I st Dept 201 I ] [dismissing cause of action because plaintiffs failed to establish d fraud was independent from the breach of contract or that it violated a legal rate from the duty owed under the contract]). Here, the negligence alleged by ithin the four corners of the flooring installation agreement with American , As the legal duty that defendant allegedly violated is not separate from the duty that owed under their contract, the Court finds that there is no cause of action for High I negligent performance of a contract. Moreover, while plaintiffs argue in opposition that the summary judgment motion is premature, plaintiffs fail to set forth a reliable actual basis for that assertion such as to warrant denial of High Rise s motion (see Chappo & v /on Geophysical Corp., 83 AD3d 499, 500-501 [I st Dept 201 I ] [ plaintiff . . . will not d to use pretrial discovery as a fishing expedition when [it] cannot set forth a reliable asis for what amounts to, at best, mere suspicions ], quoting Devore v Pfizer Inc., 58 20081). foregoing, the Court finds it appropriate to grant the herein motion for /- Page 7 of 8 [* 8] CONCLUSION For these reasons and upon the forgoing papers, it is, D that defendant High Rise Flooring and Construction LLC s motion is granted se of Action is dismissed and the complaint is dismissed as against it; and it is RED that within 30 days of Entry, counsel for defendants is directed to serve a with Notice of Entry upon the plaintiff and upon the Clerk of the Court who is nter judgment accordingly. nstitutes the De : c FINAL DISPOSITION ] Check if appropriate: NON-FINAL DISPOSITION DO NOT POST > FILED SEP Ob 2M3 Page8of 8 \ ! ,, ! !

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