Five Star Elec. Corp. v 86th St. Constructors Joint Venture

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Five Star Elec. Corp. v 86th St. Constructors Joint Venture 2021 NY Slip Op 30894(U) March 18, 2021 Supreme Court, New York County Docket Number: 651499/2018 Judge: Debra A. James 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] NEW YORK COUNTY CLERK 03/18/2021 02:56 P~ NYSCEF DOC. NO. 70 INDEX NO. 651499/2018 RECEIVED NYSCEF: 03/18/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DEBRA A. JAMES IAS MOTION 59EFM Justice ----------------------------------------------------------------- ----------------X FIVE STAR ELECTRIC CORP, INDEX NO. MOTION DATE Plaintiff, 651499/2018 06/14/2019 002 MOTION SEQ. NO. -v86TH STREET CONSTRUCTORS JOINT VENTURE, DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 37, 38, 39, 40, 41, 42,43,44,45,46,47,48,49,50,51,52,53,54,55,56,57,58,59, 60,62, 63 were read on this motion to/for DISMISS ORDER Upon the foregoing documents, it is ORDERED that the motion to dismiss of defendant is granted to the extent that the fourth (breach of fundamental obligations of contract), fifth (breach by "change and abandonment" of contract), sixth (breach of "obligation to negotiate in good faith"), eighth (breach of material terms of contract), ninth (breach of fiduciary duty) and tenth (unjust enrichment) causes of action of the amended complaint are dismissed, and the motion is otherwise denied; and it is further ORDERED that defendant is directed to serve an answer to the amended complaint within 20 days after service of a copy of this order with notice of entry; and it is further 651499/2018 FIVE STAR ELECTRIC CORP. vs. 86TH STREET CONSTRUCTORS Motion No. 002 1 of 4 Page 1 of4 [*[FILED: 2] NEW YORK COUNTY CLERK 03/18/2021 02:56 NYSCEF DOC. NO. 70 INDEX NO. 651499/2018 P~ RECEIVED NYSCEF: 03/18/2021 ORDERED that counsel are directed to post to NYSCEF a proposed preliminary conference order or a counter proposed preliminary conference order on April 19, 2021. DECISION It is hornbook law that "[w]hen a court rules on a CPLR 3211 motion to dismiss, it 'must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiff[] the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory'"(Whitebox Concentrated Convertible Arbitrage Ptnrs LP v Superior Well Servs, Inc, 20 NY3d 59, 63 [2012] [citations omitted]). Here, the facts of neither the ninth cause of action for breach of fiduciary duty nor of the tenth cause of action for unjust enrichment, as alleged in the amended complaint, state cognizable claims. As to breach of fiduciary duty, plaintiff makes no factual allegations as to any special relationship between the parties to the subcontract (see GSCP VI EdgeMarc Holdings, LLC v ETC Northeast Pipeline, LLC, Slip Op 01356 [1st Dept 2021]) AD3d , 2021 NY With respect to unjust enrichment, plaintiff does not dispute the existence of a subcontract that governs the parties' dispute, which subcontract defendant acknowledges, and therefore such claim may not be 651499/2018 FIVE STAR ELECTRIC CORP. vs. 86TH STREET CONSTRUCTORS Motion No. 002 2 of 4 Page 2 of 4 [*[FILED: 3] NEW YORK COUNTY CLERK 03/18/2021 02:56 P~ INDEX NO. 651499/2018 NYSCEF DOC. NO. 70 RECEIVED NYSCEF: 03/18/2021 maintained (see Goldstein v CIBC World Markets Corp, 6 AD3d 295, 296 [1st Dept 2004]). This courts finds that the fourth, fifth, causes of action are repetitive of the first, sixth, second, and eighth third, and seventh causes of action of the amended complaint that also sound in breach of contract, and therefore shall dismiss same (see Squire Records, Inc v Vanguard Recording Soc, Inc, 25 AD2d 190, 192 [1st Dept 1966]) . With respect to defendant's argument that plaintiff has not sufficiently pled that it provided timely written notice of claims, concededly a condition precedent under the subcontract, this court disagrees. The complaint allegations suffice in that of paragraphs regard International Fidelity Ins Co, (see 14 AD3d 383, 20 1199 384 and 21 Housing of Corp the v [l3t Dept 2005]). As the First Department held in 1199 Housing Corp, with respect to the defense of failure to comply with a condition precedent of a contract, the pleading burden rests upon defendant. Moreover, this court never elected to notify the parties that it would treat defendant's motion for dismissal as one for summary judgment. Thus, it would be inappropriate for the court to order an immediate trial on the issue of timely notice, prior to joinder of issue pursuant to CPLR 3211(c). Subcontract <Jl4. 1 provides, rights to as a condition precedent to its claim extra compensation and reimbursement 651499/2018 FIVE STAR ELECTRIC CORP. vs. 86TH STREET CONSTRUCTORS Motion No. 002 3 of 4 for extra Page 3 of 4 [*!FILED: 4] NEW YORK COUNTY CLERK 03 /18 /2 021 02: 5 6 INDEX NO. 651499/2018 PMI NYSCEF DOC. NO. 70 work, RECEIVED NYSCEF: 03/18/2021 that plaintiff submit on a to defendant daily basis verified, time and material records of all work performed under protest. On that basis, the first and second causes of action for breach of contract are cognizable. As to the third cause of action for breach of contract arising from extra work and unknown delays, this court finds that such claim for sufficiently contemplated in asserts either Agreement of April 11, cause of action the delays subcontract 2016. seeks enforceability of the damages Thus, damages or that the were not Acceleration this court finds that such that are exceptions to "no-damages-for delay" provisions the of the subcontract, as set forth in Corinno Civetta Constr Corp v City of New York, (67 NY2d 297, 309-311 [1986]). Subcontract c:!I 2.1 provides: "Any payment for work performed or materials supplied that has been properly invoiced and is more than seven (7) calendar days due shall bear interest at the rate set from time to time by the State Tax Commission." Such provision supports plaintiff's seventh cause of action seeking an award of interest for late payments. P-~ .d-}~ 2021031B145627DJAMES96DDB9CD506B443BA74BA075993F7B46 3/18/2021 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: DEBRA A. JAMES, J.S.C. ~ CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 651499/2018 FIVE STAR ELECTRIC CORP. vs. 86TH STREET CONSTRUCTORS Motion No. 002 4 of 4 D D OTHER REFERENCE Page4 of 4

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