503 Evergreen Ave. LLC v Metropolitan Realty Exemptions Inc.

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503 Evergreen Ave. LLC v Metropolitan Realty Exemptions Inc. 2023 NY Slip Op 33776(U) October 24, 2023 Supreme Court, Kings County Docket Number: Index No. 521876/2022 Judge: Leon Ruchelsman 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. INDEX NO. 521876/2022 FILED: KINGS COUNTY CLERK 10/24/2023 11:25 AM NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 10/24/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 -·-----·---·-----·- ·.-- ·. - . ------- ·-------------·x 503 EVERGREEN AVENUE LLC, Plaintiff, Decision and order - against - Index No~ 521376/2022 METROPOLITAN REALTY EXEMPTIONS INC., Deferidahts, --- -~--- -- ---- - ------------------- PRESENT: HON. LEON RUCHELSMAN October 24, 2023 X Motion Seq. #1 The plaintiff has tncYved seeking st.urunaty judgement pursuant to CPLR §3212 arguing there arie no questions of fact the defendants breached the contract. motion. The defencla:hts oppose the Papers were submitted by the parties and arguments held and after reviewing all the arguments. thj,s; court now makes the following .determination. On November 7, 2019, the plaintiff hired the defendant to prepare and file. applications for tax abatements pursuant to RPTL §421-a(16) regarding property located at 499 Evergreen Avenue in Kings County. The property that was the supject of the contract contained eight dwelling units. The defendant erroneously supmittedan applic 9 tion for a nine dwelling unit property. The defendant sought to remedy the mistake arid obtain the ta:x abatements. Thus, on March 10, 2022 Martin Joseph the chief exec1.Jtive officer of the defendant submitted art affidavit to the. New York City Department of Housing Pr~serv.p.tion .and Development [hereinafter 'HPb.' ] admitting the .mistaki'=!, a.tk-riowledgin.g the Inistake [* 1] was solely du:e to the defendant and that the plaintiff 1 of 5 FILED: KINGS COUNTY CLERK 10/24/2023 11:25 AM NYSCEF DOC. NO. 28 INDEX NO. 521876/2022 RECEIVED NYSCEF: 10/24/2023 should be afforded an opportunity to correct the mistake to take advantage qf the tax abatements (~, Affidavit of Martin Joseph [NYSCEF Doc. No. 12]) . HPD declined the ability to correct the mistake whereupon this lawsuit was commern::ed. The complaint asserts causes of .3.ctioh for breach of contract and negligence, The plaintiff has now moved seeking summary judgement arguing there are no questions of fact the defendant breached the contract and committed negligence. Conclusions of Law Where the material facts at issue in a case are in dispute summary judgment cannot be granted (Zuckerman York, 4 9 NYS2d 557, 427 NYS2d 595 [T9ff0] ) . v. city of New Generally, it is for the jury, the trier of fact to determine the legal cause of any injury, however, where only one conclusion may be drawn from the facts then the question of legal cause may pe decided by the trial court as a matter of law (Marino v. Jamison; 189 AD3d 1021, 136 NYS3d 324 [2d Dept., 2021) . It is well settled that to succeed upon a claim of breach of contract the plaintiff must establish the existence o.f a contract, the plaintiff's performance, the defendant's breach ahd resulting darila:ge s (Harris v. Seward Park Housing Corp .. , 7 9 AD3d 425, 913 NYS2d 161. [Pt Pept., 2010]). Generally, merely ailegihg the breach of a contract d1.1ty 2 2 of 5 --------------------------------------------------········· [* 2] INDEX NO. 521876/2022 FILED: KINGS COUNTY CLERK 10/24/2023 11:25 AM NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 10/24/2023 arose from a lack of due care will not transform a breach of contract claim into a: tort claim (Sommer v. Federal Signal Corp., 79 NY2d 540, 583 NYS2d 957 [1992]). The court in Sommer explained that legal duties independent of contract claims could be imposed upon professionals; cbri:linoli carries and bailees as a matter of policy where there is a duty owed by the professional independent of the duty imposed by the. contract. Indeed, while some states· recognize the tort of negligent breach bf contract (§.§.§., Hayton Farms Inc., v. Pro-Fae Corp., Inc., 2010 WL 517434 9 [Western District of Washington 2010]) in New York there is no tort cause of a:ctioh for the negligent performatrce of a contract (see, Attallah v. New York College of Osteopathic Medicine, 189 AD3d 1324, 134 NYS3d 793 [2d Dept., 2020]) ~ Thus an examination of the two causes of action is necessary. The brE:.ach of contract claim against the defendant is essentially contained within paragraph 21 of the Complaint. That paragraph states that "Defendant breathed the Contract when Defendant's error in drafting and filing the Workbook for 499 Evergreen resulted in the denial of the 421-a tax abatemept for 4 9 9 Evergreen" (see, Verified Complaint,. !J[21 [NY SCE F Doc . No • 1]). The allegations supporting the professional negligence ca1,1se o,f action is essenti2l.lly contained within paragraph 30 of t.he Complaint. That parp:graph states that "by. making the material misrepresentation in the Workpook for 499 Evergreen, 3 5 - - - - - - - - - - · · · ·.. ·-···········-··--·····- .. -[* 3] - - - - - - - - - - - - - - - - - - - - - -3-of- - INDEX NO. 521876/2022 FILED: KINGS COUNTY CLERK 10/24/2023 11:25 AM NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 10/24/2023 Oefendant failed to Gonform to the standard of care and duty with respect to the Plaintiff" {see; Verified Complaint, 'Jl30 [NYSCEF Doc. No. 1]). How1::ver, the negligence cause of action does not contain any specific conduct that is different from the breach of contract allegation. As the c::ourt held in Dormitory Authority of the State of New York v. Samscih Construction Co., 30 NY3d 704, 70 NYS3d 893 [2D18] where the negligence allegations are merely a ''restatement" of the breach of contract allegations the negligence action must be dismissed (see; Board of Managers Of Beacon Tower Condominium v. 85 Adams Street LLC, 136 AD3d 680, NYS3d 233 25 [2d DepL, 2016]) . Therefore, the motion seeking summary judgement regarding the negl~gence cause of action is denied. Turning to the breach of contract claim, there is no questiOrt that a breach of contract rtray be eStablished even, like here, where the breach was inadvertent. Thus, the plaintiff has sufficiently demonstrated a breach of the agreement which is n6t even disputed. Therefore, while there is no issue regarding liability, there are significant questions regarding damages which cannot be summarily decided. Therefore, the parties must engage irt discove.ry, including expert testimony:,. if sought, and if necessary a trial ori. the issue of darnaqes may follbW. Thl.isi the motion seeking surtunaxy judgement on the first. 4 [* 4] 4 of 5 FILED: KINGS COUNTY CLERK 10/24/2023 11:25 AM NYSCEF DOC. NO. 28 cause of action RECEIVED NYSCEF: 10/24/2023 on the issue of liability only is granted. Sci cirde:ted, ENTER: DATED: October 24, 2023 Brooklyn N.Y. Hon. Leon Ruchelsman JSC 5 [* 5] INDEX NO. 521876/2022 5 of 5

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