Greco Constr. Dev., Inc. v Bushwack 9, LLC

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Greco Constr. Dev., Inc. v Bushwack 9, LLC 2017 NY Slip Op 32049(U) September 28, 2017 Supreme Court, Kings County Docket Number: 523278/16 Judge: Lawrence S. Knipel 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 09/29/2017 11:02 AM 1] NYSCEF DOC. NO. 38 INDEX NO. 523278/2016 RECEIVED NYSCEF: 09/29/2017 At an IAS Term, Commercial Part 4 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 28th day of September, 2017. PRESENT: HON. LA WREN CE KNIPEL, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X GRECO CONSTRUCTION DEVELOPMENT, INC., DECJSION AND ORDER Plaintiff, Index No. 523278/ 16 - against - Mot. Seq. No . 1 BUSHWACK 9, LLC, ELSEWHERE LLC, and "JOHN DOE l" through "JOHN DOE 10," said parties being lienors who have yet to perfect their liens and being fictitious and unknown to Plaintiff, Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X The following e-filed papers read herein: NYSCEF Docket No.: Notice of Motion, Affirmation, Memorandum of Law, and Exhibits Annexed-- - - - - - - - - - - - - - - Affirmation (Affidavit) in Opposition - - - - - - - - - - - Reply Affirmation (Affidavit)_ _ __ _ _ _ _ _ _ _ _ _ __ 6-13 24-25 32 In this action, inter alia, for breach of contract, the preanswer motion of the defendant Elsewhere LLC (hereafter, the defendant) for an order, pursuant to CPLR 3211 (a) (I) and (7), 1 dismissing the complaint of the plaintiff Greco Construction Development, Inc. (hereafter, the plaintiff) insofar as asserted against it is resolved, as follows: Although the affidavit in support of the defendant's motion also cites (in ~ 2) subsection (10) of CPLR 3211 (a) as a basis for dismissal , this provision is not addressed either in the defendant's moving papers or in its supporting memorandum of law and, accordingly, is not considered by the Court. 1. 1 of 5 [*FILED: KINGS COUNTY CLERK 09/29/2017 11:02 AM 2] NYSCEF DOC. NO. 38 1. INDEX NO. 523278/2016 RECEIVED NYSCEF: 09/29/2017 Dismissal ofCertain Causes ofAction Without Opposition. The plaintiff does not oppose the dismissal of the fifth, sixth, seventh, and eighth causes of action against the defendant, and the same are hereby dismissed. 2. Documentary Evidence (CPLR 3211 [a] [I]). The documentary evidence submitted by the defendant in support of its motion does not utterly refute the complaint's factual allegations and conclusively establish a defense as a matter of law (see CPLR 32 11 [a] [l] ; RC! Plumbing Corp. v Turner Towers Tenant Corp.,_ AD3d _ , 2017 NY Slip Op 05759, at* 1 [2d Dept 2017]). Therefore, the Court need only address the remaining branch of the defendant's motion which is for dismissal of the first, second, third, and fourth causes of action for failure to state a claim under CPLR 3211 (a) (7). 3. Breach of Contract (First Cause of Action). "The essential elements for pleading a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff' s performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach" (Dee v Rakower, 11 2 AD3d 204, 208-209 [2d Dept 2013]). The complaint, as augmented by the affidavit of the plaintiff' s president, sufficiently pleads a cause of action for breach of contract. The complaint alleges the existence of an agreement between the plaintiff and the defendant, the plaintif:f s performance of its obligations under the agreement, the defendant's breach of the agreement, and damages resulting therefrom. Accordingly, the branch of the defendant's motion for dismissal of the plaintiff's first cause of action for breach of contract against it is denied (see Tri-Star Lighting Corp. v Goldstein, 151 AD3d 1102, 1105 [2d Dept 2017]; Webb vGreater New YorkAuto. Dealers Assn., Inc., 1 AD3d 1111 , 111 2 [2dDept 2014]). .23 2 2 of 5 [*FILED: KINGS COUNTY CLERK 09/29/2017 11:02 AM 3] NYSCEF DOC. NO. 38 4. INDEX NO. 523278/2016 RECEIVED NYSCEF: 09/29/2017 Unjust Enrichment (Second Cause ofAction). "The existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract [such as for unjust enrichment] for events arising out of the same subject matter" (Clark-Fitzpatrick, Inc. v Long Is R. Co., 70 NY2d 382, 388 [1987] [emphasis added]). "[S]ince plaintiff is entitled to plead inconsistent causes of action in the alternative, the quasi-contractual claims [for unjust enrichment] are not precluded by the pleading of a cause of action for breach of an oral agreement" (Winick Realty Group LLC v Austin & Assoc., 51 AD3d 408, 408 [I51 Dept 2008] [emphasis added]). Here, the complaint, as amplified by the affidavit of the plaintiffs president, pleads the existence of a series of agreements between the parties but does not allege whether such agreements were written or oral. Reading the complaint in a light most favorable to the plaintiff, the alternative cause of action for unjust enrichment is sustained for pleading purposes. Notably, the defendant, while conceding (in~ 15 of its counsel ' s reply affirmation) that "there is no dispute as to the existence of agreements between and among the parties," fai ls to elaborate whether the parties' agreement was written or oral. Consequently, the branch of the defendant' s motion for dismissal of the second cause of action for unjust enrichment against it is denied. 5. Mechanic's Lien and Trust Assets (Third and Fourth Causes of Action, Respectively). Article 3-A of the Lien Law impresses with a trust any funds paid or payable to a contractor " under or in connection with a contract for an improvement of real property" 3 3 of 5 [*FILED: KINGS COUNTY CLERK 09/29/2017 11:02 AM 4] NYSCEF DOC. NO. 38 INDEX NO. 523278/2016 RECEIVED NYSCEF: 09/29/2017 (Lien Law§ 70 [ 1]). " [T]he Lien Law establishes that designated funds received by owners, contractors and subcontractors in connection with improvements of real property are trust assets and that a trust begins 'when any asset thereof comes into existence, whether or not there shall be at that time any beneficiary of the trust"' (Aspro Mechanical Contr., inc. v Fleet Bank, N.A., 1 NY3d 324, 328 [2004] [quoting Lien Law § 70 (3)], rearg denied 2 NY3d 760 [2004]). Lien Law§ 72 (1) states that " [a]ny transaction by which any trust asset is paid, transferred or applied for any purpose other than a purpose of the trust as stated in [Lien Law § 71] before payment or discharge of all trust claims with respect to the trust, is a diversion of trust assets." The complaint alleges that the plaintiff filed a mechanic' s lien against the underlying property for the sum it is owed for the work it performed thereon, that trust assets existed for the benefit of the plaintiff and other contractors, and that the defendant diverted trust assets for purposes other than paying the plaintiff. These allegations are sufficient, at the pleading stage, to state a cause of action for a mechanic's lien and a diversion of trust assets (see Lane Constr. Co., Inc. v Chayat, 117 AD3d 992, 993 [2d Dept 2014]; Martirano Const. Corp. v Briar Contr. Corp., 104 AD2d 1028, 103 1 [2d Dept 1984]). The defendant's unsupported assertion that the improvements to the underlying property were financed by "private means" and that, therefore, no trust assets could have existed under the Lien Law, is insufficient to defeat the plaintiffs claims at this stage of litigation (see Carr v Hayes, 92 AD3d 534, 535 [Pl Dept 20 12], Iv denied 19 NY3d 802 [20 12], rearg denied 19 NY3d 95 1 [20 12]). 4 4 of 5 [*FILED: KINGS COUNTY CLERK 09/29/2017 11:02 AM 5] NYSCEF DOC. NO. 38 INDEX NO. 523278/2016 RECEIVED NYSCEF: 09/29/2017 Conclusion Based on the foregoing and after oral argument, it is ORDERED that the defendant Elsewhere' s preanswer motion to dismiss the plaintiff s complaint, pursuant to CPLR 3211 (a) ( 1) and (7), is granted to the extent that the plaintiffs fifth, sixth, seventh, and eighth causes of action are dismissed without opposition, and the motion is otherwise denied with respect to the plaintiffs first, second, third, and fourth causes of action; and it is further ORDERED that the defendant Elsewhere shall have 20 days from the date of service of this decision and order with notice of entry on its counsel within which to answer the extant portions of the complaint; and it is further z ORDERED that the matter is set for a preliminary conference to be held in v Commercial Part 4 on Qofo~1J. 2017, at -- and it is further - /J. ~n.; ORDERED that the plaintiffs counsel serve a copy of this decision and or :r with notice of entry on the defendants' respective counsel and shall file an affidavit of said service with the County Clerk. This constitutes the decision and order of the Court. ENTER FORTHWITH, HON. 5 5 of 5

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