Katzenellenbogen v Aaronov

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Katzenellenbogen v Aaronov 2014 NY Slip Op 33295(U) December 9, 2014 Supreme Court, Kings County Docket Number: 500793/14 Judge: David I. Schmidt 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. [*FILED: KINGS COUNTY CLERK 12/16/2014 02:19 PM 1] NYSCEF DOC. NO. 22 INDEX NO. 500793/2014 RECEIVED NYSCEF: 12/16/2014 At an lAS Term, Part Com-2 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 9th day of December, 2014. PRESENT: HON. DAVID I. SCHMIDT, Justice. -----------------------------------X MICHAEL KA TZENELLENBOGEN AND ESTHER WILENKIN, Plaintiffs, Index No. 500793/14 - against- ISSAC AARONOV AKA ISKY A ARONOV AKA ISKYO ARONOV, LL ORGANIZATION INC., AND HIGH POWER CONSTRUCTION CORP., Defendants -----------------------------------X The following papers numbered 1 to 6 read on this motion: Papers Numbered Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed. 1-3 _ Opposing Affidavits (Affirmations ), _ 5 Reply Affidavits (Affirmations), _ 6 _____ _ Affidavit (Affirmation) Other Papers 4 Memorandum of Law Upon the foregoing and Iskya Aronov) papers, defendants and LL Organization Isaac Aronov (also known as Iskyo Aronov (collectively defendants) move, for an order [* 2] dismissing the complaint pursuant to CPLR 3211 (a) based on documentary evidence failure II ' to state a cause of actton, and lack of personal jurisdiction. Background il I I This action ari:ses out of a residential contract for sale of property (the contract) located at 650 Maple I~treet in Brooklyn (the premises). On or about December 12,2012, 'I plaintiffs entered into ~hecontact with LL Organization to purchase the premises. Defendant II :i Aronov is the president of LL Organization. The contract was executed in four parts: the I printed contract and t*ee separate riders that were incorporated into the agreement and the contract amount was $687,000. On or about January 30, 2014, defendants commenced the. :1 II instant litigation alleging causes of action for: breach of contract, negligence, unjust I~ enrichment, fraudulent/negligent .! representation, fraud, in the inducement, rescission and I disgorgement; breach iiof fiduciary duty; breach of good faith and fair dealing; breach of Ii housing merchant implied warranty; fraud; and attorney's fees pursuant to General Business il Law (GBL) ~349 (h) .,i Defendants' Motion Defendants Ardnov and LL Organization (collectively defendants) move, for an order II dismissing the complaInt pursuant to CPLR 3211 (a) based on documentary evidence, failure II ~ . to state a cause of actioh-, and lack of personal jurisdiction. Defendants argues that plaintiffs ~ agreed to purchase the premises in "as is" condition and failed to raise any issues or concerns I 'I at the closing.. Defendants maintain that there have never been any agreements obligating II 2 [* 3] :1 .. th em t 0 con dt any ~onstructIon or repaIrs to the premises and that plaintiffs were given a uc $25,000 repair credit at the closing. Discussion Ii II When a party~moves to dismiss a complaint pursuant to CPLR 321 1(a)(7), the standard is whether tile pleading states a cause of action, not whether the proponent of the I i pleading has a cause ?f action" (Bokhour v GTI Retail Holdings, Inc., 94 AD3d 682, 682 Ij i: [2012] quoting Soko(v Leader, 74 AD3d 1180, 1180-1181 [2010]; see Guggenheimer v II Ginzburg, 43 NY2d 2~8, 275 [1977]). "In considering such a motion, the court must accept ~I 'I the facts as alleged in ijhe complaint as true, accord plaintiffs the benefit of every possible favorable inference, a~d determine only whether the facts as alleged fit within any cognizable ,I legal theory" (Sokol, 74 AD3d at 1181 [internal quotation marks omitted]; see Nonnon v City 11 o/New York, 9 NY3dl:825, 827 [2007]). '''Whether a plaintiff can ultimately establish its allegations is not partl of the calculus' " (Sokol, 74 AD3d at 1181, quoting EBC L Inc. v Goldman, Sachs & Cd., 5 NY3d 11, 19 [2005]). In addition, when deciding a motion to Ii dismiss under CPLR :~211 (a) (7), the court may consider documents referenced in or '! attached to the complaint (see Manchester Equip. Co. vPanasonic Indus. Co., 141 AD2d 616 II II [1988], Iv denied 73 N,1Y2d703 [1988]). A motion to dis~iss pursuant to CPLR 3211(a)(1) may be appropriately granted only II il where the documentarY evidence utterly refutes plaintiffs factual allegations, conclusively II establishing a defense as a matter oflaw'" (Faith Assembly v Titledge o/N. Y Abstract, LLC, 3 [* 4] 'I 106 AD3d 47, 57-58 [2013] quoting Cervini v Zanoni, 95 AD3d 919, 920-921[2012]; I! Goshen v Mutual Lif~ Ins. Co. of N. 1':, 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 ,! :j / NY2d 83,88 [1994]; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker :1 ' LLP, 38 AD3d 34,38: [2006]). 1\ Finally, "[t]o d~smiss a complaint pursuant to CPLR3211(a)(8) court lacks jurisdictiob on the ground that the CPLR 3211 (a) (8) provides for dismissal of an action where the ,i court lacks personal jurisdiction over the defendant. The burden of proof rests upon the party asserting personal jurisdiction (see Armouth IntI. v Haband Co., 277 AD2d 189, 190 [2d II II Dept 2000]; Roldan ~ Dexter Folder Co., 178 AD2d 589, 590 [2d Dept 1991]; Spectra II Prods. v Indian Riv. Citrus Specialties, 144 AD2d 832, 833 [3d Dept 1988]). Where a I defendant submits facts that would negate a court's power to obtain jurisdiction over it, the plaintiff is required "to come forward with evidence to support the existence of a basis upon I Ii which to predicate the exercise of personal jurisdiction . . . or to at least show that such II i evidence may exist" (Roldan, 178 AD2d at 590; see also Weiss v Chou, 234 AD2d 539, 540 II [2d Dept 1996]; Spectra Prods., 144 AD2d at 833). I. ii Breach of contract I' .I "The essential elements of a cause of action for breach of contract are the existence II I, of a contract, the plaintiffs performance under the contract, the defendant's breach of the j contract, and resultingjdamages." (Morpheus Capital Advisors LLC v UBS AG, 105 AD3 d II i 1 \ 145, 150 [1st Dept 20t~3]; see Elisa Dreier Reporting Corp. v Global NAPs Networks, Inc., 4 [* 5] I; 84AD3d 122,127 [2dDept2011];seeJp Morgan ChasevJ.H Elec. a/NY, Inc., 69 AD3d II 802 [2d Dept 2010]).11 Plaintiffs' c0n1plaint alleges that defendants had a duty to perform various services pursuant to the contra!t and that they materially breached the contract by failing, neglecting, and refusing to perfo~ work negligently by the work in a good and workmanlike manner and performing the Ifsing inferior, unsuitable and defective materials and installation t, methods causing plai~tiffs damages in an amount believed to be not less than $200,000. I ' Plaintiffs allege that tney performed their duties under the contract. Defendants argue that the documentary evidence, in the form of the contract itself, I I refutes plaintiffs' breaph of contract claim. Specifically defendants argue that pursuant to ,I paragraph 12 of the cohtract plaintiffs acknowledged that they were accepting the premises 11 in "as is" condition and were fully aware ofthe physical condition and state of repair of the :1 premises. Additionally they point out that the first rider to the contract whereby plaintiffs again acknowledge th4t they were aware of the condition of the premises and had inspected !: I' the premises with an ehgineer or a professional of their choice and that premises was being sold ""as is" where is,l!with all faults and defects." Defendants maintain that the contract ': and riders reveal that defendants did not have obligations nor represent that they were going 'i !\ " to perform any "work'~ or construction to the premises. Defendants point out that plaintiffs were further put on nbtice as to the condition of the premises when they were given a II $25,000 repair credit ' i{ the closing. 5 [* 6] II In opposition, plaintiffs argue that defendants are relying on a selective reading of the I contract provisions iA an effort to absolve them of any wrongdoing. Plaintiffs point to II paragraph 1 of the second rider which relevantly states that "(i]fthis rider conflicts in any :1 way with the printed form Contract of Sale and/or Rider(s) attached thereto, then this rider .1 ;1 shall control." Next, they point to Paragraph 2 ofthe Second Rider which states in relevant 'II, j! part that "(s]eller alsoirepresents that any worked performed or to be performed on or at the premises during Selld.'s period of ownership has been or will be performed in accordance II with all state and local building codes and, where applicable, the necessary permits and/or I certificates have been:ior will be issued." Additionally, plaintiffs claim that defendants are II misrepresenting the repair credit which plaintiffs claim was actually given because they had II requested that the kitchen be relocated to a different part of the premises which defendants II ,I 'i did not do but rather issued plaintiffs the $25,000 credit. II Here the court finds that in plaintiffs' complaint they properly plead the existence of 'I the contract, their performance under the contract and defendants breach of said contract 'II, II through its use of infe~ior and defective work on the premises prior to handing it over to " plaintiffs. Finally, pillintiffs assert that they have sustained damages of approximately II il $2000,000 as a result ~f said breach, such amount representing what it will cost to bring the house up to code in or~er to obtain a certificate of occupancy. Accordingly, the court finds il 'I that plaintiffs have stated a cause of action for breach of contract and thus the branch of ,i defendants's motion s!eking to dismiss this cause of action is denied. Ii 6 [* 7] Negligence Defendants ar~ue that plaintiffs' negligence claims should be dismissed as there is no " allegation of any breach of duty outside of the contract and thus this is just a reiteration of I~ the breach of contraeticlaim. Plaintiffs com~laint alleges that defendants held themselves out as skillful and competent homebuildbrs and represented in the contract that the wok performed on the premises would be done with the appropriate level of skill and customary standards consistent with the p~eVailing industrial standards free of material defects. However, ;1 plaintiffs claim the work was performed carelessly and negligently below the requisite standards resulting J ,I losses and damages to plaintiffs in an amount estimated to be " ,I approximately $200,000. il "[M]erely alleging that the breach of a contract duty arose from a lack of due care will not transform a simple breach of contract into a tort" (Sommer v Federal Signal Corp., 79 :1 II NY2d 540,551 [1992]; see Abacus Fed. Sav. Bank v ADT Sec. Servs., Inc., 18 NY3d 675, , 684 [2012]; Clark-Fitzpatrick, Inc. vLong Is. R.R. Co., 70 NY2d 382,390, [1987]; Chiarello Ii v Rio, 101 AD3d 793, 796 [2012]). In the instant case, the court finds that the cause of action sounding in negligence ,I was "merely a restatement, albeit in slightly different language, of I, the 'implied' contractu~l obligations asserted in the cause of action for breach of contract" II (Countrywide Home Boans, Inc. v United Gen. Tit. Ins. Co., 109 AD3d 953, 954 [2013] " 7 [* 8] quoting Clark-Fitzpafrick, Inc, 70 NY2d at 390). Thus that branch of defendants motion seeking to dismiss pl~intiffs' negligence claim is granted. !! Unjust enrichment Ii Defendants argue that the cause of action alleging unjust enrichment should be I! !r dismissed as it is also ,:duplicative of the breach of contract claim. Defendants argue that a il claim for unjust enrichment is only applicable in situations where there is not an express te II . ij agreement governing subject matter. Plaintiffs' complaint alleges that defendants have been unjustly enriched, because they received payments totaling $687,500 from plaintiffs but II failed to perform their obligations under the contract. II The theory of unjust enrichment lies as a quasi-contract claim (Goldman v II ,j Metropolitan Life Ins. Co., 5 NY3d 561, 572 [2005]). "It is an obligation imposed by equity to prevent injustice, iJ the absence of an actual agreement between the parties concerned. !I Where the parties executed a valid and enforceable written contract governing a particular i subject matter, recove~ on a theory ofunjust enrichment for events arising out ofthat subject :1 II matter is ordinarily pr~cluded" (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d II 132, 142 [2009]; Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382,388 [1987]). Here it is undi~buted that a valid contract exists between these parties. Therefore; plaintiffs' cause of achon for unjust enrichment is precluded by the existence of a valid I, II agreement, Le., the co~tract and riders, which governs this transaction related to the sale of the property (see Cors~llo v Verizon N. 1':, Inc., 18 NY3d 777, 790 [2012], rearg denied 19 II !I 8 [* 9] NY3d 937 [2012]; I~T Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 ,F NY3d I' [2009], rearg denied 889 [2009]; Goldman vMetropolitan Life Ins. Co., 5 NY3d II 561, 572 [2005]; EfC L Inc. v Goldman, Sachs & Co., 5 NY3d 11, 23 [2005]; 'I ~ Clark-Fitzpatrick, Inc~v Long Is. R.R. Co., 70 NY2d 382,289 [1987]). "[V]njust enrichment ":j is not a catchall caus of action to be used when others fail," but, rather, "[i]t is available l1 only in unusual situations when, though the defendant has not breached a contract nor " Ii " committed a recognized tort, circumstances create an equitable obligation running from the II defendant to the plai9-tiff' (Corsello, 18 NY3d at 790). Moreover, a claim for unjust II enrichment claim caruiot be maintained when it is duplicative of a breach of contract claim (see id.; Clark- FitzpaJick, Inc., 70 NY2d at 388- 389 [1987]). Thus, dismissal of plaintiff's II unjust enrichment claiin is also mandated due to its failure to state a viable cause of action tl II (see CPLR 3211 [a] [7]). II FraudIFraudulentlNeg!igent Representation and Fraud in the Inducement Defendants arghe that plaintiffs' claims alleging fraud, fraud in the inducement and II ii negligent/fraudulent ~isrepresentation must be dismissed on three grounds: 1) that plaintiffs tl failed to plead fraud wi,th sufficient specificity to satisfy the pleading requirements ofCPLR :1 3016 (b); 2) that the d6cumentary evidence demonstrates that plaintiffs reliance on alleged 1 misrepresentations mahe by defendants was not justified or reasonable and 3) plaintiffs are I! II barred from rephrasing a claim for breach of contract. 9 Defendants claim that plaintiffs' [* 10] complaint fails to ide~tify the alleged statements or representations made by defendants that plaintiffs reasonably ""orjustifiably relied upon. In opposition, ~laintiffs maintain that thei~ complaint has the requisite specificity in 'I that they plead that d1efendants knowingly concealed from, and failed to disclose to the !. plaintiffs that the premises was inadequately constructed and that the work was performed II in contravention of the building code. ,i A plaintiff in ailfraud action must show'" a misrepresentation or a material omission I' of fact which was false and known to be false by defendant, made for the purpose of I II Ii inducing the other party to rely upon it, justifiable reliance of the other party on the 'I misrepresentation or rrlaterial omission, and injury'" (Mandarin Trading Ltd. v Wildenstein, II II 16 NY3d 173, 178 [2011], quoting Lama Holding Co. v Smith Barney, 88 NY2d 413,421 II [1996]; see also Salazqr v Sacco & Fillas, LLP, 114 AD3d 745, 746 [2014]; Curtis-Shanley v Bank of Am., 109 AQ3d634, 636 [2013], lv denied 22 NY3d 1133 [2014]). "Inactions for ii Ii j fraud, corporate officers and directors may be held individually liable if they participated in , :1 or had knowledge oftl;1e fraud, even if they did not stand to gain personally" (Polonetsky v Better Homes Depot, 1197 NY2d 46, 55 [2001]; see also Marine Midland Bank v Russo " Ii ,i Produce Co., 50 NY2d 31, 44 [1980]; Great Eagle Int!. Trade, Ltd. v Corporate Funding :1 i\ Partners, LLC, 104 AD3d 731, 732 [2013]). CPLR 30 16 (b) ~equires that a plaintiff plead the circumstances of any purported fraud " ,j "in detail," and the Appellate Division, Second Department, has treated this as requiring that II II ;,, 10 [* 11] "fraud must be plea~ed with particularity so as to inform the defendant of the alleged i wrongful conduct and, give notice of the allegations plaintiffintends to prove" (McDonnell, II " 109 AD3d 592,593 [2013; see also Greenberg v Blake, 117 AD3d 683,684 [2014]; House of Spices [India], Inc~ v SMJ Servs., Inc., 103 AD3d 848,850 [2013]). "To sustain a claim for fraudulent inducement, there must be a knowing misrepresentation of ~aterial fact, which is intended to deceive another party and to induce i! il them to act upon it, causing injury" (Sokolow, Dunaud, Mercadier & Carreras v Lacher, il 299 AD2d 64, 70 [2002]; see also Jo Ann Homes at Bellmore v Dworetz, 25 NY2d 112, 118ii 119 [1969]). II I In order to make out a prima facie case of negligent misrepresentation, the plaintiff ': must show "( 1) the existence of a special or privity-like relationship imposing a duty on the 'I defendant to impart ~orrect information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information"( Us. Express Leasing, Inc. v. Elite II 11 Technology (NY) Inc) 87 AD3d 494 [2011), citing J.A.o. Acquisition Corp. v Stavitsky, 8 'I NY3d 144, 148 [2007]). "[A] misrepresentation ofa material fact which is collateral to the " contract and serves as ~n inducement to enter into the contract is sufficient to sustain a cause ,I of action sounding in fraud" (Introna v Huntington Learning Ctrs., Inc., 78 AD3d 896,898 " II [2010]; " Gilpin v Osw~go Bldrs., Inc., 87 AD3d 1396, 1399 [2011]; see Board ofMgrs. of Marke Gardens Condbminium v 240/242 Franklin Ave., LLC, 71 AD3d 935,936 [2010] II I, Ii 11 [* 12] :1 , However, it is well established that" "a cause of action to recover damages for raud fl. II II will not arise where the only fraud charged relates to a breach of contract"''' (Weinstein v II Natalie WeinsteinDe~',ignAssocs., Inc., 86 AD3d 641,642-643 [2011], quoting Yenrab, Inc. ,I v 794 Linden Realty, ~~C, 68 AD3d 755, 757 [2009], quoting Mastropieri v Solmar Constr. Co., 159 AD2d 698, 700 [1990] "[A] cause of action alleging breach of contract may not be ,I converted to one for fraud merely with an allegation that the contracting party did not intend !I ,', , to meet its contractual;(obligations" (Refreshment Mgt. Servs., Corp. v Complete Off. Supply Ij , Warehouse Corp., 89 AD3d 913,914 [2dDept2011];see also New York Univ. v Continental II Ins. Co., 87 NY2d 308, 318 [1995]; Clark-Fitzpatrick, Inc., 70 NY2d at 389). Here, the q court again finds that plaintiffs' claims sounding in fraud, fraudulent inducement and !i negligent misrepresentation should be dismissed inasmuch as the fraud alleged solely relates II to the breach of contr~ct claim and is thus duplicative. Rescission & Disgorgement " "I, Defendants argue that plaintiffs have failed to properly state a cause of action for !I I, rescission and disgorg~ment as they have not alleged th,e elements of fraud with sufficient particularity and argue'lthat the contract shows that plaintiffs were not justified in relying on !i 'I defendants alleged misrepresentations when they clearly acknowledged that they were accepting the premise) "as is" and that the contract expressed their full agreement. In opposition, ~laintiffs argue that recission may be granted where there is fraud in II the making of the contract and, where as here, they have pled that defendants fraudulently ;1 12 [* 13] induced plaintiffs inti! entering the contract with regard to defendants filings with the DOB. " Plaintiffs point out that the purpose that they entered into the contract was to obtain a home for their family to livf in has been defeated by defendants' fraudulent conduct and thus, II I' rescission is an adequ~te remedy. As a general rule, rescission of a contract is permitted for such a breach as I' " 'I substantially defeats the purpose for entering into the contract initially. It is not permitted for , a slight, casual or tec~nical breach, but only for such as are material and willful, or, if not 'I willful, so substantial ~nd fundamental as to strongly tend to defeat the object of the parties in making the contrac~'" (Wiijeff, LLC v United Realty Management Corp., 82 AD3d 1616 II [2011], quoting Lenel Sys. Inti., Inc. v Smith, 34 AD3d 1284, 1285 [2006] [internal quotation i marks omitted]; see CdUanan v Keeseville, A usable Chasm & Lake Champlain R.R. Co., 199 :1 NY 268,284 [1910]; Lenel Systems Intern., Inc. v Smith, 106 AD3d 1536 [2013]; Smolev v I ' Carole Hochman Design Group, Inc., 79 AD3d 540 [2010]; RR Chester, LLC v Arlington II Bldg. Corp., 22 AD3d ~52 [2005]). A finding of a material breach must be based upon proof that the departure fron{ the terms of the contract or defects in its performance pervaded the "I: whole of the contrad! so as to defeat the object that the parties intended (see Miller v Ii Benjamin, 142 NY 613,617 [1894]; Fitzpatrick v Animal Care Hosp." PLLC., 104 AD3d 'I II 1078 [2013]; Robert Cohn Assoc., Inc. v Kosich, 63 AD3d 1388, 1389 [2009]; Mortgage Elec. Registration Sysj Inc. v Maniscalco, 46 AD3d 1279 [2007]; O'Herron v Southern Tier II II Stores, Inc., 9 AD2d $68 [1959]). The remedy of rescission is thus an "extraordinary 13 [* 14] remedy" that is only i!appropriate "when a breach may be said to go to the root of the agreement between thr parties (see MBIA Insurance Corp. v Countrywide Home Loans, Inc., 105 AD3d 412,413 [2013]). i! . Here the court finds that plaintiffs have adequately plead the elements of a rescission II II claim inasmuch as ther plead that defendants made material false representations regarding the condition of the wbrk performed on the premises knowing that plaintiffs would rely on II such statements and that plaintiffs have been damaged as a result. Namely, that they cannot ii live in the house they purchased which was the purpose ofthe contract. As such, the court "'I " finds that plaintiffs h4ve adequately pled a rescission cause of action and that branch of II defendants' motion seeking to dismiss the rescission cause of action is denied. Conversely, II the court finds that tJ,lat branch of defendants' motion seeking dismissal of plaintiffs' II disgorgement claim isllgranted. Breach of Fiduciary D'hty I' II I; Defendants argue that plaintiffs' breach of a fiduciary duty claim should also be dismissed because th~1cause of action has not been plead with sufficient detail and that Ii plaintiffs have failed ~to establish that a fiduciary duty existed between plaintiffs and defendants. Plaintiffs claitrl states that defendants had a heightened relationship of trust and !\ " confidence with plaintiffs constituting a fiduciary relationship through which defendants indicated that they had!:fumished their best skills and judgment and performed their services I; 14 [* 15] in the most expeditiots manner consistent with plaintiffs' interests. Thus, plaintiffs claim I that defendants failJre to perform their task related to the home construction II in a :1 workmanlike manner,iwas a breach of their fiduciary duties. "The elements Ilofa cause of action to recover damages for breach of fiduciary duty ,I il are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caus~d by the defendant's misconduct'" (Faith Assembly v Titledge ofN..Y. II Abstract, LLC, 106 AI)3d 47,61-62 [2013]; Armentano v Paraco Gas Corp., 90 AD3d 683, ,I II 684 [2011]; Rut v You~g Adult Inst., Inc., 74 AD3d 776, 777 [2010]; Fitzpatrick House III, II LLC v Neighborhood Youth & Family Services, 55 AD3d 664 [2008]; Kurtzman v Bergstol, il 40 AD3d 588, 590 [2007]). "A fiduciary relationship arises where 'one party's superior II ,I position or superior ailcess to confidential information is so great as virtually to require the II other party to repose trust and confidence in the first party,' and the defendant was 'under a !I duty to act for or to give advice for the benefit of another upon matters within the scope of [I II the relation'" (Anwar y Fairfield Greenwhich Ltd., 728 F Supp 2d 372, 415 [2010]). " However, in the instant case, plaintiffs' "breach of a fiduciary duty claim is based II II I! upon the same facts arid theories as their breach of contract claim and should be dismissed I as duplicative" (Brookf v Key Trust Co. Natl. Assn., 26 AD3d 628, 630 [2006]; see Kaminsky Ii v FSP, Inc., 5 AD3d25:1, 252 [2004]; William Kaufman Org. v Graham & James, 269 AD2d ,I 171, 173 [2000]; see dJso Brasseur v Speranza, 21 AD3d 297, 298 [2005]; Fesseha v TD Waterhouse Inv. Servsl, 305 AD2d 268,269[2003]). 15 [* 16] Breach of Good Fait~' & Fair Dealing I i Defendants argue that plaintiffs' claim for breach of good faith and fair dealing should 11 also be dismissed bec!use it is duplicative oftheir breach of contract claim as they have not alleged any new facts fhat would separate it from the breach of contract claim. In opposition, 'I plaintiffs contend tha~ defendants, as homebuilders, made certain representations in their filings with the DepaJment of Buildings regarding the work that they had performed on the II 'i premises and that said work was performed according to the applicable Codes governing il such work. Thus, plairttiffs maintain that in making representations both on the public record II ,I and in their dealings ~ith plaintiff, defendants negotiated in bad faith and plaintiffs relied II upon these misrepresentations. " ;! Where a claim for breach of the implied covenant of good faith and fair dealing, is I' ,i duplicative of a contract claim, it should be dismissed since both claims" arise from the same =1 facts and seek the identical damages for each alleged breach" (Netologic, Inc. v Goldman II Sachs Group, Inc., 110 AD3d 433 [2013]; Amcan Holdings, Inc. v Canadian Imperial Bank " 'I a/Commerce, 70 ADJd 423,426 [2010] Iv denied, 15 NY3d 704 [2010]). Here, plaintiffs' II !1 " claim for breach of good faith and fair dealing contains the same allegations as their breach of contract claim regadiing defendants failure to perform their work in a skillful manner and II seeks the same damades. Accordingly, the court finds that this claims is duplicative of plaintiffs' breach of dontract and should therefore be dismissed. Ii 16 Thus, that branch of [* 17] defendants' motion s~eking dismissal of plaintiffs' breach of good faith and fair dealing claim is granted and strid claim is hereby dismissed. " II Breach of Housing Merchant Implied Warranty :! " Plaintiffs com~ilaint includes a claim that defendants breached the Housing Merchant Implied Warranty in f~iling to construct the premises is a skillful manner free from material defects. II Defendants argue that this claim should be dismissed because pursuant to General Business Law (GBL) trticle 36-B ~777-a, a housing merchant implied warranty is implied only when it concemJ the sale of a newly constructed home. Defendants claim that the I premises at issue was ,inota newly constructed home and thus, plaintiffs' claim should be ,i I dismissed for failure to state a cause of action. In opposition, ~laintiffs argue that defendants misstate the statute and point out that 1\ under GBL ~777- a( 1) 'this warranty is implied in the contract for the sale of a new home and shall survive the passing of title. " They point out that GBL ~777 (6) defines the term II "builder" as meaning ~ny entity contracting with an owner for the construction or sale of a I 'I new home. Plaintiffs further point to GBL~ 777 (6) defines the term "owner" as "the first ,'I . . " person to whom the h6me is sold and, during the unexpired portion of the warranty period, I each successor in title 'to the home and any mortgagee in possess. Owner does not include ,I II the builder of the hom~ or any firm under common control ofthe builder." Based upon the foregoing, plaintiffs mhintain that the transaction at issue in which the defendants (builders) " 17 [* 18] il transferred the prop'brty to plaintiffs (owners) constitutes they type of transaction ,I contemplated under ,GBL 777-a and thus the housing merchant implied warranty is II applicable. They fu~rer argue that defendants are in violation of this warranty since the ,I II premises were not bui~t tq Code which is prima facie evidence that it was not constructed in I " a skillful manner pointing out that GBL S777 (3) defines "constructed in a skillful manner" " as workmanship and rbaterials that "meet or exceed the specific standards of the applicable building code." II "By looking at the history of the housing merchant implied warranty statute, the case ~ ,I law interpreting it andl the wording of the statute itself, the court finds that the statute only II applies to contracts 0~1 agreements that involve the sale of new homes" (Watt v Irish, 184 Misc. 2d413, 414-415'!cN.Y. Sup. Ct. 2000); see Caceciv Di Canio Constr. Corp., 72 NY2d 52 [1988]; Matter o/ioberts Real Estate v New York State Dept. a/State, Div. a/Licensing " " Servs., 80 NY2d 116, 1!122[1992]; Fumarelli v Marsam Dev., 92 NY2d 298, 302 [1998]; ,I Chan v Rose Constr. Corp., 211 AD2d 872 [1995]; Pitcherello v Moray Homes, 150 AD2d Ii " 'i 860 [1989]; General Business Law, art 36-B, S 777 et seq.) In the instant case, the record :1 reveals that defendants began their project of performing a gut renovation of the premises " I ' on or about July 16,20 J2, which demonstrates that the premises was not a newly constructed I: home protected under'; the housing merchant implied warranty. As such, that branch of defendants' motion se'bking dismissal of this cause of action is granted and said claim is hereby dismissed. 18 [* 19] General Business Lavv 9 349 (h) II Plaintiffs' com~laint alleges that plaintiffs as consumers of defendants' services were 'I the victims of materi~lly deceptive and misleading acts which were done with the intent to II II deceive. Plaintiffs are 'seeking treble damages and attorneys' fees pursuant to GBL ~349 (h). Defendants seek disrhissal of this claim arguing that the sale of a home does not involve ,I consumer goods or services. General BusinJss Law ~ 349 (a) renders unlawful "[ d]eceptive acts or practices in the !I I, 'I conduct of any business, trade or commerce or in the furnishing of any service in this state." ,I Although ~ 349 primJrily discusses enforcement by the Attorney General, subsection (h) ii explicitly permits an individual injured by a ~ 349 violation to bring a private action se,eking il injunctive relief or damages. Such a plaintiff must demonstrate that the defendant engaged 'I in a consumer-oriented act or practice, that such act or practice was materially deceptive or I! !~ misleading and that it caused the plaintiff injury (see David v #1 Mktg. Serv., Inc., 113 AD3d I! 810,811 [2014]; BeneA1cialHomeownerServ. Corp. v Williams, 113 AD3d 713,714 [2014]; i I see generally Oswego faborers 'Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 24-26 [1995]). Practices treated as deceptive are limited to "representations or I~ omissions ... likely; to mislead a reasonable consumer acting reasonably under the circumstances" (Oswego Laborers' Local214 Pension Fund, 85 NY2d at 26; see also David, 113 AD3d at 811-812). 19 [* 20] Courts have copsistently held that in order to plead and prove a claim under GBL 349, Ii 'I a plaintiff must make 'a threshold showing that the challenged act or practice was consumer oriented, that is, it m~st have a broad impact on consumers at large (u. W. Marx, Inc. v. Bonded Concrete, Inf', 7 AD3d 856, 858 [2004]; Oswego, 85 NY2d at 25-27; Green II Harbour Homeowners,' Assn. v G.H Dev. & Constr., 307 AD2d 465, 468 [2003], Iv il dismissed 100 NY2d 940 [2003]; Teller v Bill Hayes, Ltd., 213 AD2d 141, 145 [1995], Iv dismissed and denied 87 NY2d 937 [1996]). In contrast, private contract disputes which are i~ !I unique to the parties do not fall within the ambit of the statute. Here, the plaintiffs do not 'I il ' allege that the defendapts engaged in deceptive business practices directed at members ofthe public general and thu~, they do not state a valid claim under the statute (see Flax v Lincoln '.1I Natl. Life Ins. Co., 54 AD3d 992,994-995 [2008]). Accordingly, that branch of defendants motion seeking dismissal of plaintiffs' claim alleging a ;violation ofGBL ~349 and seeking I damages under ~349 (p) is granted and said claim is dismissed. I! Finally, defend~nts argue that all of plaintiffs' claims should be dismissed as asserted ,i against Aronov as the 90urt lacks personal jurisdiction over him. Defendants argue that LL Organization was the Jole party to the contract with plaintiffs and, thus, Aronov should not be held personally liable. The argue that in order to hold him personally liable, plaintiffs II I, must plead and meet the high standard for piercing the"corporate veil. In their complaint, i plaintiffs allege that LL is the alter ego for Aronov. ,I . 20 [* 21] 11 Piercing the corporate veil generally requires a showing that: (1) the owner exercised I complete domination o'fthe corporation in respect to the transaction attacked, and (2) such domination was used ~o commit a fraud or wrong against the plaintiff which resulted in plaintiffs injury (see JJtorris v. State Dep't of Taxation & Fin., 82 NY2d 135,141 [1993], " citing Matter ofGuptilliHolding Corp v State of New York, 33 AD2d 362,364-365 [1993]). The contract, oJ its face, demonstrates that Aronov executed the contract, on behalf of LL, in his corporate yapacity as its president, and that he did not purport to bind himself individually under the c?ntract (see Khiyayev v MikeSad Enters., Inc., 66 AD3d 845, 846 [2d Dept 2009]). Nowhere:!in the contract is there any indication that it was the intent of the parties that Aronov was 'to be held liable in an individual capacity (see Gottehrer v Viet-Hoa ;1 'I Co., 170 AD2d 648, 648 [2d Dept 1991]). There are also no specific allegations by plaintiffs that show that Aronov, in any way, utilized his position as president ofLL Organization to II perpetuate a fraud upon, plaintiffs, and, in any event, a simple breach of contract, without it more, cannot constitute ~ fraud or wrong which could warrant a piercing of the corporate veil II (see Bonacasa Realty cb., LLC !i v Salvatore, 109 AD3d 946,947 [2013]; Treeline Mineola, - LLC v Berg, 21 AD3d I'P28, 1028-1029 [2005]). Accordingly, tha~ branch of defendants motion seeking to dismiss all claims asserted against Aronov in his intlividual capacity is granted. il The foregoing copstitutes the decision and order of the court. ii ENTER, ~ J. S. C. HaN. DAVID 1.SCHMlOT 21

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