920 Fifth Ave. Corp. v Zoomtion Fitness, LLC

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920 Fifth Ave. Corp. v Zoomtion Fitness, LLC 2021 NY Slip Op 32452(U) November 19, 2021 Supreme Court, New York County Docket Number: Index 651326/2017 Judge: Lucy Billings 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. [* 1] INDEX NO. 651326/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/23/2021 SUPREME COURT OF THE STATE OF NEW YORK PART 41 COUNTY OF NEW YORK: ------------------------------------ ---x 920 FIFTH AVENUE CORPORATION, Plaintiff Index No. 651326/2017 -against- DECISION AND ORDER ZOOMTION FITNESS, LLC, EARL ROGERS a/k/a EARL RODGERS, and JOSHUA HOLLAND, Defendants ------------------~----· ---------------x LUCY BILLINGS, J.S.C.: Plaintiff sues to recover damages for breach of a contract and fraudulent misrepresentation arising from a contract that the parties entered for defendant Zoomtion Fitness, LLC, to deliver and install fitness equipment for plaintiff. Plaintiff moves for summary judgment on both the breach of contract and the fraud claims, C.P.L.R. § 3212(b) and (e), and dismissing defendants' affirmative defenses and their counterclaim for breach of the contract. C.P.L.R. §§ 321l(b), 3212(b). Plaintiff also moves to sever and continue its fifth cause of action for attorneys' fees. For the reasons explained below, the court grants plaintiff's motion in part. I. BREACH OF THE CONTRACT Plaintiff presents authenticated copies of checks from it to Zoomtion Fitness for the purchase of fitness equipment; plaintiff's Assistant Secretary Anthony Milstein's affidavit that 9205thav1121 1 I . 2 of 10 [* 2] INDEX NO. 651326/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/23/2021 plaintiff never received the equipment for which plaintiff paid; and defendant Rogers's authenticated emails admitting· that Zoomtion Fi tnes_s r~peatedlf missed its promised· del_i very d~t-es. This admissible evidence· ·establishes Zoomtion Fitness' liab_ili ty. Alloy Advisory: LLC v. 503 W. 33rd St. Assocs .• Inc., 1~5 ~.D.3tj 436, 436 (1st Dep't 2021); Belle Light. LLC v. Arti~an Constr . . . · Partners LLC, 178 A.D.3d 60$, 606 (1st Dep't 2019); Reiter ·Resources, Inc. v. Gilmartin, 176 A.D.3d 617, 61$· (ls~ D~p't ·2019); Gordonv. Schaeffer, 176 A.D.-3d 431, 431 (1st Dep't 2019). In Zoomtion. fail_s· to 'present a· defense . opposition, ' . . Fitness . to plaintiff's br~ach of contract claim. Defendants do not attest that they ~el~vered or ins~alled any of the equipment pursuant to the contract; in fact,. Rogers cqncedes that Zoomtion Fitnes~ did not.deliver the fitness equipment nas we had initially anticibated." Aff. of Earl Rogers! 3. Although defendants ,:tttribute Zoomtion Fi tne.s_s,. · nonperformance ~o the . actions of their supplier, Technogym USA, .a nonparty's delay does . : • l • not excuse an obligation to perform unl~ss .the contract so provides, see Dinallo Const!. ·Corp. 'JJ'. Phoenix RMA Constr. ~ , 193A.D_.3d 407, 407 (lst.Dep't 2021), .and defendants fail to identify a contract provisipn that excused Z~omtion Fitness' promise to deliver the equipment b·y January 3, · 201.7. Technogym USA's prompt .delivf:;ry of the same fitness equipment . ordered from defendants, moreover; after· plaintiff cirdere·d the. 9205thavll21 • 2 3 of 10 [* 3] INDEX NO. 651326/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/23/2021 equipment direc~ly from Technogym USA, belies defendants' excuse. Si·nce d~fendants failed to deliver and install the fitness equipment by January 3, 2017, and do not r·ebut plaintiff's payments to Zoomtion Fitness, the co.urt grants plaintiff summary· judgment aga~nst Zoomtion Fitness for $71,604.83 .. The court denies plai.ntiff summary judgment on the breach of contract claim against defendants Rogers and Holland, however, because neither of them signed the contract.in~ way that ~uggest~ an intention to be personally bound by the contract~ Wormser,· Kiely, Gale£ Jacobs, LLP v. -Frumkin, 125 A.D.3d 516, 517 & (1st Dep't 2015); Shugrue v. Stahl, ·117. A.D.3d 527, 528 (1st ·Dep't 2014); Georgia I Malone & Co. v .. Rieder,. 86 A.D.3d 406, 408 aff'd, 19 N.Y.3d 511 (2012). (1st Dep~t 2011), Rogers simply signed his name above "ZOOMTION FITN~SS" on the contract, ~ff.· Of Anthony Mi~stein Ex. 2, ~t 7, and uhd~rneath "2OO~TION" on the "Rider to Agreement." Id. at 11. H<;:>~la.nd s.igned neither document. The court further grants plaintiff summary judgment dismissing .defendants' counterclaim that pla'intiff breached the contract by purchasing directly from Technogym USA the fitness equipment previously ordered from defendants. Defendants' failure to delive! the fitness equipment by January 3, 2017,· entitled plaintiff ~o cover defendants' nondelivery·by purchasing fitness equipment from another supplier, including Technogym USA, despite the previous contract between Zoomtion Fitness and 9205thav1121 3 4 of 10 [* 4] INDEX NO. 651326/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/23/2021 plaintiff. N.Y.U.C.C. §§ 2-711(1) (a), 2~712(1); Fertico Belgium v. Phosphate Chems. Export Assn., 70 N.Y.2d 76, 81-82 (1987); Toto We're Home v. Beaverhome.Com, 301 A.D.2d 643, 644 (2d Dep't 2003); Del's Maraschino Cherries Co., Inc. v. Shoreline Fruit Growers, Inc., 887 F. Supp. 2d 459, 480 (E.D.N.Y. 2012). f See . Medinol Ltd. v. Boston Scientific Corp., 346 F. Supp. 2d 575, 594~95 (S.D.N.Y. 2004). Finally, defendants seek to offset plaintiff's damages for Zoomtion Fitness' breach of the contract by the value of a substitute piece of equipment, a Technogym USA "Kinesis personal training machine,n that defendants claim they delivered to plaintiff., Aff. of William R~ Mait Ex. 9, at 98. Reply Aff. of William R. Mait Ex. 2, at 106. See id. at 99; Defendants may not maintain any such counterclaim or affirmative defense, however, since they never raised it in their answer. SH575 Holdings LLC v. Reliable Abstract Co., 195 A.D.3d 429, 429 (1st Dep't 2021); Demetriades v. Royal Abstract Deferred, LLC, 159 A.D.3d 501, 503 (1st Dep't 2018); American Std., Inc. v. Oakfabco, Inc., 58 A. D. 3d 485, 487 II. (1st Dep' t 2009). FRAUD To establish a prima facie claim of fraud, plaintiff must demonstrate: ( 1) a material· misrepresentation of fact, defendants' knowledge of its falsity, reliance, 9205thav1121 ( 4) (3) their intent to induce justifiable reliance, and ( 5) damages. 4 5 of 10 ( 2) Ambac '--- [* 5] INDEX NO. 651326/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/23/2021 Assur. Corp. v. Countrywide Home Loans, Inc., 31 N.Y.3d 569, 57879 (2018); Pasternack ·v. Laboratory Corp. of Am. Holdings, 27 N.Y.3d 817, 827 (2016); Genger v. Genger, 152 A.D.3d 444, 445 _ (1st Dep't 2017); "MP Cool Invs. Ltd.· v. Forkosh, 142 A.D.3d 286, 290-91 (1st Dep't 2016). Plaintiff insists it contracted with Zoomtion Fitness because defendants misrepresented in the Rider to Agreement that Zoomtion Fitness was just a name by which Technogym USA was, doing business, and plaintiff thus believed it was contracting.with Technbgym USA. Plaintiff presents no deposition testimony, affidavit,. or ~erified pleading, however, that plaintif( act~ally relied on-defendants' alleged misrepresentation that Zoomtion Fitness was just a name by which Technogym USA was do~ng bus.iness and that_ plaintiff thus was contracting with_Technogym USA, not Zoomtion Fitnes~. Plaintiff maintains that def~ndants also engaged in fraud because, in accepting pl~intiff's .payments, defendants represented that they would use ~hose payments for plaintiff's fitness equipment, yet they never purchased it from Technogym USA. Plaintiff's only evidence of defendants' alleged nonpayment, however, is hear~ay frbm Technogym USA. The fact 1 that defendants never delivered the equi~ment does not establish that they never paid for it. ~n rebuttal, moreove~, Rogers testified at his deposition that Zoomtion Fitness paid Technogym USA for plaintiff's fitness 9205thav1121 5 6 of 10 [* 6] INDEX NO. 651326/2017 NYSCEF DOC. NO. 84 equipment. RECEIVED NYSCEF: 11/23/2021 Although he also authenticated a copy of a check from Zoomtion ,Fitness to Technogym USJ\ for $29;140.38, this check does not correspond in time or amount with plairttiff's bhecks to Zoomtion Fitness, nor do defenc;J.ants otherwise establish that the $29,140.38 was _tQ purchase the equipment pl~intiff ordered. Nevertheless, Rogers's testimony regarding full payment defeats summary judgment in plaintiff's favor on its claim that defendants f~a-udulently withheld payment from T'echnogym USA. Therefore the court denies plaintiff summary judgment on both bases for the fraud claim. III. AFFIRMATIVE DE'FENSES The court grants plaintiff ~ummary judgment dismis_sing defendants' first, . defenses. second, fourth, and fifth affirmative Defendants waived their fir~t two affirmative defenses_, inadequate service of the summons and complaint and ·1ack of perso~al jurisdiction on that basis, when defendants failed to move to· dismiss the complaint on these grounds within·_ 60 days after answering. C.P.L.R. § 3211(e); Anderson Kill, P.C. v. Board of Mars. of Honto 88 Condominium, 192 A .. o:3d 551, 551 (1st Dep't 2021); tlermont v. Abdelrehim, 151 A.D.3d 495, 495 (1st Dep't 2017); Luver Plumbing & & He?ting, Inc. v. Mo's- Plumbing heating, 144 A.D~3d 587, 588 (1st Dep't 2016); Tannenaum Helpern Syracuse~ Hirs~htritt LLP v. DeHeng Law Offs., 127 A.D.3d 564, 565 (1st Dep't 2015). 9205thav1121 Defendants' fourth and fifth 6 7 of 10 [* 7] INDEX NO. 651326/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/23/2021 affirmative defenses, plaintiff's breach of the contract and its cupable conduct, are based on plaintiff pur~hasing the equipment directly from Technogym USA. Therefore the court dismisses these defenses on th~ same grounds bn which the court dismisses defendants' counterclaim~ ' their noddelivery entitled plaintiff to cover that breach by purchasing the equipment from another supplier. N.Y.U.C.C. §§ 2-711(1) (a), 2-712(1). The court denies plaintiff summary judgment dismissing defendants' third affirmative defense, however, claiming that the individual defendants are not personally liable. Factual questions remain whether the contract bound Rogers or Holland personally and whether plaintiff justifiably relied on the alleged misrepresentations in which Rogers or Holland personally_ participated and for which the participant therefore may be personally liable. Pludeman v. Northe{n Leasing Sys;, Inc., 10 N.Y.3d 486, 491 (2008); Polonetsky ~- Better Homes Depot, 97 N.Y.2d 46, 55 (2001); People v. Northern Leasing Systems. Inc., 193 A.D.3d 67, 76 (1st Dep't 2021); People v. Orbital Publ. Group. Inc., 169 A.D.3d 564, 566 (1st Dep't 2019). IV. CONCLUSION For the reasons explained above, the court grants plaintiff's motion for summary judgment on its breach of contract claim against defendant Zoomtion Fitness LLC and severs that claim from the remainder of the action. / 9205thav1121 7 8 of 10 The Clerk shall enter a [* 8] INDEX NO. 651326/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/23/2021 judgment in favor of plaintiff and against Zoomtion Fitness LLC for $71,604.83, with intereit t6 be calculated by the Clerk at 9%. per year from January 25, 2017, as .sought. in the complaint. C.P.L.R. §§ 5001; 5004. The court also grants plaintifif's motibn for summary j~dgment dismissing defendants' first, s~cond, fourth, and fift~ affirmative· defenses and defendants' counterclaim for breach of the parties' contract. C.P.L.R. § ! ' 3212(b) and (e). In light of this determination; plaintiff's claim for fraud against Zoomtion Fitness is academic. Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801,· 810-11 (2003); Admiral Ins. Co. v. Joy Contrs., Inc~, 190 A.D.3d 630, 630-31 2021). (1st Dep't Since the c·omplaint seeks the same $71,604.83 with interest from January 25, 2017, on .the fraud claim as already • awarded on plaintiff's claim for breach of the contract against Zoomtion Fitness, the fraud claim is duplicative, Amon v. Drohan, 188 A.D.3d 404, _'405° (1st Dep't 2020.); MBIA Ins. Corp. v. Credit Suisse Sec. (USA) LLC, 165 A.D.3d 108, 114 (st Dep't 2018); Cronos Group. Ltd. v. XComIP, LLC, 54, 64 (1st -• ~p't 2017), and its determination would "haven? practical eifect on the parties." Saratoga· County Chambe,r of Commerce v. Pataki, 100 N.Y.2d at 811. Dep' t 2013); Eve See Santiago v. Berlin,· ~J..11 A.D.3d 487, 487 & (1st Mike Pharm., Inc. v. 'Greenwich Pooh/ LLC, 107 A.D.3d 505, 505 (1st Dep't 2013). 8 9 of 10 [* 9] INDEX NO. 651326/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 11/23/2021 The court denies plaintiff's motion for summary judgment on its cl?im for frau_d against defendants Rogers. and Holland. Plaintiff's fifth cause bf action for attorneys' fe~s against defendants remains unaffected and may proceed to trial with the remaining claims. DATED: November 19, 2021· L'UCY BILLINGS; J.S.C. I" ~UCY BILUf>ijGS J.S.C 9205thavll21 9 10 of 10

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