Avery v WJM Dev. Corp.

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Avery v WJM Dev. Corp. 2016 NY Slip Op 33145(U) June 23, 2016 Supreme Court, Westchester County Docket Number: Index No. 61219/2015 Judge: William J. Giacomo Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] WESTCHESTER COUNTY CLERK 06/23/2016 02:14 PM NYSCEF DOC. NO. 67 INDEX NO. 61219/2015 RECEIVED NYSCEF: 06/23/2016 To commence the statutory To commence the statutory time for appeals appeals as of of right right time for 5513[a]), (CPLR 551 J[a]), you you are advised to serve serve a copy copy advised of this this order, order, with notice of with notice of entry, entry, upon upon all all parties. parties. of SUPREME COURT COURT OF THE STATE OF NEW NEW YORK YORK SUPREME THE STATE COUNTY OF WESTCHESTER COUNTY WESTCHESTER PRESENT: HON. WILLIAM J. GIACOMO, GIACOMO, J.S.C. J.S.C. PRESENT: WILLIAM J. -------------------------------------------------.--------------------x ------------------------------------------------------------------------------x LINDA AVERY KYLE AVERY, AVERY, LINDA AVERY and KYLE Plaintiff, Plaintiff, Index No. 61219/2015 61219/2015 Index Decision & Order Order Decision -against-against- WJM DEVELOPMENT CORP, LUCIEN MARTIN, WJM DEVELOPMENT CORP, LUCIEN MARTIN, INDIVIDUALLY, STACY STACY MARTIN, MARTIN, INDIVIDUALLY, INDIVIDUALLY, TOM TOM F. INDIVIDUALLY, ABILLAMA, R.A., GEORGE GALGANO, ESQ., ABILLAMA, R.A., GEORGE GALGANO, ESQ., MCPHILLIPS MECHANICAL, MECHANICAL, INC. D/B/A D/B/A B&C PLUMBING, PLUMBING, MCPHILLIPS INC., TRAVELERS INSURANCE CO., CHASE TRAVELERS INSURANCE CO., CHASE INC., MANHATTAN MORTGAGE MORTGAGE COMPANY, COMPANY, JP Jp MORGAN MORGAN MANHATTAN CHASE BANK, BANK, N.A., NA, AS SUCCESSOR SUCCESSOR IN INTEREST INTEREST TO CHASE TO WAMU, AND INFINITY INFINITY CONSTRUCTION CONSTRUCTION COMPANY, COMPANY, WAMU, AND INC., Defendant. Defendant. ------------------------------------------------------------------------------x ------------------------------------------------------------------------------x The following papers papers numbered numbered 1 to 8 were were read on plaintiff's plaintiff's motion motion to allow allow her to enter enter The following home, defendant defendant Tom Abillama, R.A.'s RA's motion motion to dismiss dismiss the the complaint, complaint, defendant defendant her home, Tom F. Abillama, Charter Oak Oak Insurance Insurance Company's, Company's, sued sued here as Travelers Travelers Insurance Insurance Co., motion motion to Charter dismiss the the complaint, complaint, plaintiff's plaintiff's petition petition for for an order order pursuant pursuant to Lien Law§ Law S 76, and WJM WJM dismiss Development Corp., Corp., Lucien Lucien Martin, Martin, Stacy Stacy Martin, Martin, George George Galgano, Galgano, Esq., McPhillips McPhillips Development Mechanical, lnc.'s Inc.'s ("WJM. ("WJM Defendants") Defendants") motion motion to dismiss dismiss plaintiff's plaintiff's demand demand pursuant,to pursuant to Mechanical, Lien Law§ Law S 76. PAPERS NUMBERED NUMBERED PAPERS 1-3 'Order to Show Show Cause/Affidavits/Exhibits Cause/Affidavits/Exhibits -----------------'-1-=-3 ·order WJM Defendant's Defendant's Affirmation WJM Affirmation in Opposition/Exhibits Opposition/Exhibits _ _ _ _ _ _ _ _ _4-5 4-'---~5 6-8 Abillama's Notice of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits _ _ _ _ _ _ _ _ _ _--=6-~8 Abillama's Notice Plaintiff's Affidavit in Opposition Plaintiff's Affidavit Opposition _ _ _ _ _ _ _ _ _ _ _ __,___ _-------"'9-9 Reply Affirmation Affirmation Reply 10 1 of 7 [* 2] Charter Oak's Oak's Notice Notice of Motion/Affirmation//Exhibits - - - - - - - ~ ~ 11-13 Charter of Motion/Affirmation//Exhibits 11-13 ~ Plaintiff's Affidavit in Opposition Plaintiff's Affidavit Opposition ________________1~4 1~4, Reply Affirmation 1~5 Reply Affirmation - - - - - - - - - - - - - - - ~ - - ~ --~1~5 Notice of Petition/Petition Petition/Petition Notice 16-17 - - - - - - - - - - - - - - - - - - - ' - "16-17 -~ Notice Notice of Cross Cross Motion/Affidavits/Exhibits Motion/Affidavits/Exhibits 18-19 18-19 ------------~--'--=- Factual and and Procedural Procedural Background Background Factual February 21, 2009, 2009, there home owned owned by plaintiff plaintiff Linda Linda Avery. Avery. . On February there was was a fire at a home Plaintiff Kyle Kyle Avery Avery is Linda's Linda's adult adult son who who also resides at the the premises, premises, 8 California California Plaintiff also resides Mount Vernon, New York. On February February 23,2009, (Linda Avery) reported the 23, 2009, Avery Avery (Linda Avery) reported Road, Mount Vernon, New fire damage damage to Charter Charter Oak. In 2012, Charter Oak Oak agreed agreed to pay pay about $300,000 for 2012, Charter e:1bout $300,000 for the losses · losses due due to the the fire damage. damage. 2011, Avery suffered waterdamageto home from burst pipe. She contacted contacted In 2011, Avery suffered water damage to her home from a burst Charter Oak Oak about about that November 8, 2011, withdrew her claim. claim. 2011, Avery Avery withdrew Charter that loss but on November On December 2014, Avery Avery contacted again about about the 2009 December 18, 2014, contacted Charter Charter Oak Oak again 2009 loss. According Charter Oak, Avery hired a contractor contractor who, according to Avery, According to Charter Avery hired who, according Avery, was was not properly licensed licensed or insured insured and did not perform perform its work properly. properly work properly. On June June 30, 2015, 2015, plaintiffs plaintiffs commenced commenced this action action against against defendants. defendants. In her complaint plaintiff plaintiff Avery alleges that that on July 28, 28,2009, hired defendantAbiliama complaint Avery alleges 2009, she pired defendantAbillama as her architect for the restoration restoration of her home home from During this this time time she she was architect for from the the fire fire damage. damage. During represented by attorney attorney Bruce Bruce Mogavero, Mogavero, who who was subsequently disbarred. disbarred. According represented was subsequently According to plaintiff, obtained two checks totally $1 $100,613.97 plaintiff, Mogavero Mogavero obtained checks totally 00,613.97 and deposited deposited them them in his own Ultimately, plaintiff plaintiff received received $61,500 $61,500 from Mogavero Mogavero after after he was convicted of · account. account. Ultimately, was convicted embezzlement. embezzlement. Plaintiff alleges alleges that that after after the fire damage damage Mogavero Mogavero arranged for defendant Infinity Plaintiff arranged for defendant Infinity Construction Company Company to start start the renovation renovation work home. In September September 2009, 2009, Construction work on her home. Infinity Construction Construction Company Company abandoned abandoned the project. project. Plaintiff Plaintiff states March 2011 Infinity states that that in March Abillama recommenced Lucien Lucien Martin Martin and his company WJM Development Development Corp. Plaintiff Plaintiff Abillama recommenced companyWJM claims Martin she introduced to Stephan Kroell of Energy Energy Electric Electric and claims that that through through Martin she was was introduced Stephan Kroell Christopher McPhillips McPhillips of of B&C Plumbing, Plumbing, Inc. Avery claims that that she agreed to pay WJM WJM Avery claims she agreed Christopher $106,750 January 24 and March $106,750 for the restoration restoration work. Between Between January March 8, 2012, 2012, plaintiff plaintiff paid total of $65,716 $65,716 to Lucien Lucien Martin. Martin. On April 2012, Traveler (Charter Oaks) Oaks) issued issued a April 10, 2012, Traveler (Charter a total back funds funds check check for $13,023.19 hold back $13,023.19 which which was to be paid to WJM. WJM. Avery meeting with Martin, Martin, she concern that Avery states states that that at a April April 12, 2012 2012 meeting she raised concern that th WJM had not done done much much work since March March 7 concerned that that access yth and she was was concerned access to the WJM work since second residence and the bedroom bedroom bathroom areas areas was going going to be second floor floor of of the residence 2 of 7 and bathroom delaved. [* 3] Avery states states that that the the work work performed performed by WJM WJM and Martin Martin was defective defective since since they they Avery closed up the entire entire first first floor floor walls walls without without first first having having the proper proper inspections inspections and permits permits closed issued. Avery also states states that that new windows windows she paid Martin Martin for were were never never delivered. delivered. issued. Avery also Avery states that that after after she filed a consumer consumer complaint complaint against against Martin, Martin, she was Avery states contacted by George George Galgano, Galgano, a friend friend of Martin's, Martin's, seeking seeking to work work out the the issues issues contacted between her her and Martin. Martin. However, However, they they were were not able able to resolve resolve the issues. issues. After After the between Department of Consumer Consumer Protection Protection (DCP) (DCP) investigated investigated her her complaint, complaint, Avery Avery was Department informed that that the DCP was was unable unable to resolve resolve her complaint complaint through through mediation. mediation. informed Avery claims claims that that Martin Martin and WJM WJM did not have have the proper proper insurance insurance to perform perform Avery work on her home. home. work April 17, 2012, 2012, Charter Charter Oak informed informed Avery that it was was not renewing renewing her On April Avery that homeowners insurance insurance citing excessive excessive claims. claims. Further, Further, Avery claims that that it also also refused refused homeowners Avery claims water damage damage she sustained sustained in 2011. 2011. to pay for the water Avery claims claims that that she was was not able able to obtain obtain replacement replacement homeowners homeowners insurance insurance Avery because the the necessary necessary repairs repairs were were not made made to her home. home. She She states states that that thereafter thereafter because Chase Mortgage Mortgage assigned assigned a force-placed force-placed insurance insurance policy policy on her her home home which which premiums premiums Chase three times times more more than than her previous previous policy. policy. are three complaint, Avery, Avery, appearing appearing pro se, 5e, alleges alleges that that (1) Chase Chase was was grossly grossly In her complaint, negligent for transmitting transmitting checks checks to Mogavero; Mogavero; (2) that that Chase Chase breached breached its mortgage mortgage negligent contract by requiring requiring her her to have have force-placed force-placed insurance insurance which which is excessively excessively expensive; expensive; contract (3) Infinity Infinity Construction Construction Corp Corp converted converted funds funds owed owed to her; (4) Infinity Infinity Construction Construction Corp unjustly enriched; enriched; (5) Infinity Infinity Construction Construction Corp breached breached its construction construction contract; contract; (6) was unjustly Infinity Construction Construction Corp committed committed fraud; fraud; (7) WJM WJM and Lucien Lucien Martin Martin lacked lacked the the proper proper Infinity insurance and was was ineligible ineligible for work work permits permits and lacked lacked the legal capacity capacity to contract contract with insurance their construction construction contract contract should should be rescinded; rescinded; (8) WJM, WJM, Lucien Lucien Martin, Martin, Stacey Stacey her so their Martin, and B&C Plumbing, Plumbing, Inc. received received funds funds to work work on her home home but converted converted those those Martin, funds instead; instead; (9) WJM, WJM, Lucien Lucien Martin, Martin, Stacey Stacey Martin, Martin, and B&C Plumbing Plumbing Inc. were were funds unjustly enriched; enriched; (10) WJM WJM and Lucien Lucien Martin Martin breached breached their their construction construction contract contract with unjustly her; (11) WJM WJM and Lucien Lucien Martin Martin committed committed fraud; fraud; (12) Lucien Lucien Martin Martin trespassed trespassed on her property after after she revoked her her permission permission allowing allowing him access access to the premises; premises; (13) property she revoked Abillama breached breached his fiduciary fiduciary duty duty to Avery Avery by recommending recommending she use WJM WJM and Lucien Lucien Abillama Martin; (14) Trespass Trespass against against Chase Chase Mortgage Mortgage for changing changing the locks locks on her her home; home; (15) Martin; Charter Oak Oak breached breached its insurance insurance contract contract with with her when when it negligently negligently approved approved hold Charter back funds funds based based on work work not performed performed by WJM. WJM. Plaintiff Plaintiff Kyle Avery Avery asserts asserts a claim claim for for back negligent infliction infliction of emotional emotional distress distress against against all defendants defendants due due to their their failure failure to repair repair negligent home. . his home. Issue was joined the WJM WJM defendants defendants on October October 16, 2015. 2015. Issue joined by the 3 3 of 7 [* 4] Avery Avery now now moves moves for for an order order directing directing that that she be permitted permitted back back into her home home due due to the lock change change and that that the WJM WJM defendants defendants disgorge disgorge monies monies provided provided to them them in trust trust by Linda Linda Avery, Avery, together together with interest interest from from the the date date of diversion. diversion. The The WJM WJM defendants defendants oppose oppose Avery's Avery's OSC OSC to the extent extent it seeks seeks to direct direct the WJM WJM defendants defendants to "disgorge "disgorge monies monies provided provided to them them in trust trust by Linda Avery, Avery, together together with interest interest from from the date date of diversion." diversion." The The WJM WJM defendants defendants argue argue that that this is the ultimate ultimate relief relief sought sought in the the complaint. complaint. Defendant Defendant Abillama Abillama moves moves to dismiss dismiss the claims claims against against him on the ground ground that that there there is no allegation allegation that that he did anything anything wrong wrong other other than than recommend recommend WJM WJM and Lucien Lucien Martin Martin for for the project. project. Abillama Abillama argues argues that that there there is no allegation allegation that that the architectural architectural services services provided provided were were defective. defective. Abillama Abillama argues argues that that he does does not know know what what happened happened on the project project after after he submitted submitted his plans plans to the the Mount Mount Vernon Vernon building building department. department. Further, he owes owes no fiduciary fiduciary duty duty to Avery. Avery. Finally, Finally, since since the services services provided provided ended ended in Further, 2011, 2011, the the applicable applicable statute statute of of limitations limitations has expired. expired. Avery Avery opposes opposes the motion motion arguing arguing that that Abillama Abillama knew knew WJM WJM and Lucien Lucien Martin Martin did not have the proper proper insurance insurance when when he recommended recommended them them to her. Therefore, Therefore, according according to Avery Avery Abillama Abillama owed owed her a fiduciary fiduciary duty duty to disclose disclose this this information. information. Avery Avery also also argues argues that that the action action is not time time barred barred since since she did not learn until 2012 2012 that that WJM WJM and Martin did not have have the proper proper insurance. insurance. Charter Charter Oak moves moves to dismiss dismiss the complaint complaint on the ground ground that that it paid out on Avery's Avery's 2009 2009 claim claim and the case case was was closed. closed. Charter Charter Oak Oak argues argues that that it has no further further duty duly to Avery. Avery. Moreover, Moreover, the two-year two-year statute statute of limitations limitations for suing suing Charter Charter Oak Oak as provided provided in the insurance insurance policy policy issued issued to Avery Avery has expired. expired. In opposition opposition to Charter Charter Oak's Oak's motion motion Avery Avery argues argues that that the statute statute of limitations limitations has not expired expired since since there there is still additional additional work work that that needs needs to be performed performed on her home. Avery Avery then then brought brought a notice notice of petition petition and petition petition demanding demanding that that the WJM WJM defendants defendants deliver deliver verified verified statements statements to her pursuant pursuant to Lien Law§ Law S 75 & 76 setting setting forth forth the entries entries in their their books books and records records maintained maintained for for the "Lien "Lien Law Trust." Trust." Avery Avery argues argues that that the WJM WJM defendants defendants obtained obtained funds funds to repair repair her her home home but did not properly properly repair repair her home. home. The The WJM WJM defendants defendants cross cross move move to vacate vacate Avery's Avery's demand demand pursuant pursuant to Lien Law § S 75 & 76 arguing arguing that that the the notice notice of petition petition is defective defective since since it is not supported supported by a petition. petition. Further, Further, Avery Avery did not file a request request for a verified verified statement statement in the manner manner required required by statute. statute. The The WJM WJM defendants defendants argue argue that that they they were were served served by priority priority mail and not personally personally or by registered registered or certified certified mail as required required by statute. statute. The The WJM WJM Defendants Defendants also also argue argue that that Avery Avery makes makes no enforcement enforcement of a lien trust trust claim claim in her her complaint, complaint, therefore, therefore, is not entitled entitled to a statement statement regarding regarding any trust. trust. 4 4 of 7 [* 5] Discussion Discussion Plaintiff's Order Order to Show Show Cause Cause Plaintiff's extent Avery seeks to be permitted permitted back back into her home, home, that that application application has To the extent Avery seeks opposed and, therefore, therefore, is GRANTED. GRANTED. not been opposed Avery's application seeking seeking to have have the the WJM WJM defendants defendants return money money to her is in Avery's application essence a motion motion for summary summary judgment complaint. However, However, Avery moved for essence judgment on her complaint. Avery moved summary judgment prior to issue issue being being joined. She sought sought this this relief relief in July July 2015 2015 before before summary judgment prior joined. She WJM answered. answered. Accordingly, that relief relief is DENIED DENIED as premature. premature. WJM Accordingly, that Abillama's Motion to Dismiss Dismiss Abillama's Motion On a motion motion to dismiss dismiss a cause cause of action action pursuant pursuant to CPLR CPLR 3211 (a)(5) (a)(5) on the ground that that it is barred barred by the statute statute of limitations, limitations, a defendant defendant bears bears the initial burden burden of ground establishing, prima prima facie, facie, that that the time time in which which to sue has expired. expired. (See (See Sabadie Sabadie v. v. Burke, establishing, nd nd nd 2008]; Matter Matter of of Schwartz, Schwartz, 44 AD.3d 779 [2 Dept Dept 2007]). 2007]). In Dept 2008]; A.D.3d 779 47 A.D.3d A.D.3d 913 [2 Dept considering the the motion, motion, a court court must must take take the allegations allegations in the the complaint complaint as true true and considering resolve all inferences inferences in favor favor of the plaintiff. plaintiff. (See Sabadie Sabadie v. v. Burke, Burke, 47 AD.3d resolve A.D.3d 913 [2 ndnd 2008]; Matter Matter of of Schwartz, Schwartz, 44 AD.3d Dept 2008]; A.D.3d at 779). motion to dismiss dismiss a complaint complaint pursuantto pursuantto CPLR CPLR §3211 93211 (a)(7) (a)(7) for failure failure to state state On a motion cause of action, action, "the court court must must liberally liberally construe construe the the complaint, complaint, accept accept all facts facts as a cause alleged in the pleading pleading to be true, accord accord the plaintiff plaintiff the benefit benefit of every every favorable favorable alleged inference, and determine determine only only whether whether the the facts facts as alleged alleged fit within within any cognizable cognizable legal inference, theory" (Minovici (Minovici v Belkin Belkin BV, 109 AD3d Dept 2013]; 2013]; see Leon Leon v Martinez, Martinez, 84 theory" AD3d 520 [2ndnd Dept NY2d 83, 87-88; 87-88; Treeline Treeline 990 Stewart Stewart Partners, Partners, LLC LLC v RAIT RAIT Atria, NY2d Atria, LLC, 107 AD3d AD3d 788, Dept 2013]). 2013]). In assessing assessing a motion motion under under CPLR CPLR 3211(a)(7) 3211(a)(7) a court court may may freely freely 791 [2 nd Dept consider affidavits affidavits submitted submitted by the plaintiff plaintiff to remedy remedy any any defects defects in the complaint complaint consider (Rovello v. v. Orofino Orofino Realty Realty Co., 40 N.Y.2d N.Y.2d 633, 635) 635) and "the criterion criterion is whether whether the (Rove/lo proponent of the pleading pleading has a cause cause of action, action, not not whether whether he has stated stated one" one" proponent (Guggenheimerv. Ginzburg, Ginzburg, 43 N.Y.2d N.Y.2d 268,275; 268, 275; Rove/lo Rovello v. v. Orofino Orofino Realty Realty Co., supra, 40 (Guggenheimerv. N.Y.2d at 636). 636). N.Y.2d support of his pre-answer pre-answer motion motion to dismiss, dismiss, Abillama notes that that the claims claims In support Abillama notes against him sound sound in negligence, negligence, breach breach of fiduciary fiduciary duty, duty, and fraud. fraud. Abillama argues that that against Abillama argues prepared the the plans plans for for plaintiffs plaintiffs home home which which were were submitted submitted to the the Mount Mount Vernon Vernon he prepared Building Department Department and after after some some modification modification they they were approved in April 2012. He had April 2012. Building were approved further involvement involvement with the project project thereafter. thereafter. Abillama acknowledges that that he no further Abillama acknowledges recommended WJM WJM and Martin Martin to plaintiff, plaintiff, but claims claims that that she was free to hire any recommended was free contractor of her her choosing choosing to perform perform the construction construction work. work. Thus, Thus, there there is no fiduciary fiduciary contractor relationship between between him and Avery. Finally, Abillama claims that that he made made no fraudulent fraudulent relationship Avery. Finally, Abillama claims misrepresentations to Avery does she expressly expressly state state any alleged alleged fraudulent fraudulent misrepresentations Avery nor does statements. statements. 5 5 of 7 [* 6] Abillama also argues argues that that the statute statute of limitations limitations for for fraud fraud is one one year year and any Abillama statements he allegedly allegedly made made occurred occurred in 2012 2012 and this this action action was was commenced commenced in 2015 2015 statements after the expiration expiration of the statute statute of limitations. limitations. Further, Further, the statute statute of limitations limitations for a claim after property damages damages due due to negligence negligence is three three years years and any alleged alleged negligence negligence for property occurred in April April 2012 2012 and this action action was commenced commenced in June June 2015 2015 after after the three three years years occurred expired. expired. extent plaintiff plaintiff is asserting asserting any claims claims sounding sounding in fraud, fraud, those those claims claims must must To the extent dismissed as time time barred. barred. Likewise, Likewise, plaintiffs plaintiffs negligence negligence claims claims are must must be dismissed dismissed be dismissed time barred. barred. as time With respect respect to plaintiff's plaintiff's claim claim for breach breach of fiduciary fiduciary duty, duty, the elements elements of a cause cause With action to recover recover damages damages for breach breach of offiduciary duty are (1) the the existence existence of a fiduciary fiduciary fiduciary duty of action relationship, (2) misconduct misconduct by the defendant, defendant, and (3) damages damages directly directly caused caused by the relationship, defendant's misconduct misconduct (see Rut Rut v. v. Young Young Adult Adult Inst., Inc., 74 A.D.3d A.D.3d 776, 901 N.Y.S.2d N.Y.S.2d defendant's nd 715 [2nd Dept 201 2010]). fiduciary relation relation exists exists when when confidence confidence is reposed reposed on one side OJ). A fiduciary there is resulting resulting superiority superiority and influence influence on the other other (see Roni Rani LLC LLC v. v. Arfa, Arfa, and there N.Y.3d 846 [2011]). [2011]). 18 N.Y.3d that claim claim must must also be dismissed dismissed because because no fiduciary fiduciary duty duty existed existed between between Here, that plaintiff and Abillama. Abillama. While While Abillama Abillama may have recommended recommended WJM WJM and Martin Martin to plaintiff, plaintiff, plaintiff was free free to vet and use any contractor contractor of her choosing. choosing. Further, Further, whether whether WJM WJM or she was proper insurance insurance or pulled pulled the proper proper permits permits for the project project is information information Martin had the proper available to Avery. Avery. that was available Based on the foregoing, foregoing, Abillama's Abillama's motion motion to dismiss dismiss the complaint complaint against against him is Based GRANTED. GRANTED. Charter Oak's Oak's Motion Motion to Dismiss Dismiss Charter their pre-answer pre-answer motion motion to dismiss dismiss Charter Charter Oaks Oaks argues argues that that pursuant pursuant to the In their terms of the insurance insurance policy policy issued issued to plaintiff, plaintiff, there there is a 2-year 2-year limitations limitations period, period, from from terms date of the loss, to bring suit against against Charter Charter Oaks Oaks and that that period period expired. expired. Charter Charter the date argues that that the loss loss sustained sustained by fire occurred occurred in 2009 2009 and the the loss due due to water water Oaks argues damage in 2011. 2011. However, However, this this action action was commenced commenced in 2015 2015 well after after the the two year year damage limitations period period expired. expired. Charter Charter Oaks Oaks also argues argues that that plaintiff's plaintiff's claim claim for breach breach of limitations implied covenant covenant of good good faith faith and fair fair dealing dealing and negligent negligent infliction infliction of emotional emotional distress distress implied must be dismissed dismissed because because there there is no evidence evidence to support support those those claims. claims. must this case, the policy policy at issue contained contained a provision provision that that any legal action action for In this coverage under under it must must be brought brought within within two years years of the date date the direct direct physical physical loss or coverage damage occurred. occurred. Under Under New New York York law, the loss date date is the date date of "the occurrence occurrence of the damage casualty. or event event insured insured against" against" (see Morgan Morgan Guar. Trust Co. of of N. Y. Y. v Aetna Aetna Gas. Cas. & casualty_ AD2d 72, 73 [1993], [1993), quoting quoting Margulies Margulies v Quaker Quaker City Fire & Mar. Ins. Co., Sur. Co., 199 AD2d App Div 695, 695,700 [1950]; Califano Califano v Citizens Citizens Ins. Co. of of N.J., 163 Misc Misc 542 [Sup Ct 276 App 700 [1950]; 6 6 of 7 [* 7] 1937], 1937], affd 252 App App Div 731 (1937]). [1937]). The The losses losses experienced experienced by plaintiff plaintiff occurred occurred in 2009 2009 and 2011, 2011, yet plaintiff plaintiff commenced commenced this this action action in 2015 2015 well well after after the expiration expiration of the the policy's policy's two year year limitations limitations period. period. Accordingly, claims against against Charter Charter Oak Oak are time time Accordingly, all claims barred. barred. Based Based on the the foregoing, foregoing, Charter Charter Oaks' Oaks' motion motion to dismiss dismiss the complaint complaint against against it is GRANTED. GRANTED. Plaintiff's Plaintiff's Petition Petition and and the the WJM's WJM's cross cross motion motion to to Vacate Plaintiff's Demand Demand Vacate Plaintiff's In her petition, petition, Avery Avery seeks seeks verified verified statements statements pursuant pursuant to Lien Law§§ Law SS 75 and 76 pursuant pursuant to a demand demand she served served on the WJM WJM defendants defendants on October October 16, 2015. 2015. The The WJM WJM Defendants cross Defendants cross move move to vacate vacate the demand demand on the ground ground that that it is improper. improper. Contrary Contrary to Avery's Avery's argument, argument, she she is not entitled entitled to verified verified statements statements pursuant pursuant to the Lien Law § S 76. The The purpose purpose of of this this article article permitting permitting subcontractor subcontractor to require require an accounting accounting from from general general contractor contractor was was to make make more more certain certain that that laborers laborers and materialmen materialmen on an improvement improvement would from project project funds. (See Frontier Frontier would be paid from funds. {See th th Excavating, 1968] motion motion denied denied 24 Excavating, Inc. v. v. Sovereign Sovereign Const. Canst. Co. 30 A.D.2d 487 [4 Dept Dept 1968] A.D.2d 487 N. Y.2d 991 [1969]; N.Y.2d [1969]; see see generally generally P.M. Excavating, Excavating, Inc. v. v. Matthews Matthews Indus. Piping Piping Co., Inc., nd Dept 115 A.D.2d A.D.2d 464 464 (2 [2nd Dept 1985]). 1985]). Since Since plaintiff plaintiff is not a contractor, contractor, subcontractor, subcontractor, or laborer, laborer, there there are no trust trust funds funds being being held for for her her benefit. benefit. Accordingly, Accordingly, she is not entitled entitled to verified statements pursuant pursuant to the verified statements the Lien Law. Based Based on the foregoing, foregoing, plaintiff's plaintiff's petition petition is DENIED DENIED and the the WJM WJM Defendant's Defendant's motion to vacate vacate the demand demand is GRANTED. GRANTED. motion Summary Summary Plaintiffs' Plaintiffs' order order to show show cause cause is GRANTED GRANTED only only to the extent extent of of permitting permitting access access to their Abillama's motion their home, home, Abillama's motion to dismiss dismiss the complaint complaint is GRANTED, GRANTED, Charter Charter Oak's Oak's motion motion to dismiss dismiss is GRANTED, GRANTED, plaintiffs' plaintiffs' petition petition seeking seeking verified verified statements statements pursuant pursuant to the Lien Law is DENIED, the WJM DENIED, and the WJM Defendant's Defendant's motion motion to vacate vacate plaintiff's plaintiff's demand demand pursuant pursuant to the Lien Law Law is GRANTED. GRANTED. The The parties parties are are to to appear appear in the the Preliminary Preliminary Conference Conference Part Part on on July July 12, 2016 2016 at at 9:30 9:30 a.m. a.m. Room Room 800 800 for further proceedings. proceedings. for further White Plains, Plains, New New York Dated: White York June 23, 23,2016 June 2016 cd$~ HON. WIL ~A~O, J.S.C. H:\ALPHABETICAL H:IALPHABETICAL MASTER MASTER LIST-WESTCHESTER\Avery L1ST-WESTCHESTERlAvery v. WJM WJM Development Development ( 5 motions}.wpd motions).wpd 7 7 of 7

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