| DaCosta v Trade-Winds Envtl. Restoration, Inc. |
| 2009 NY Slip Op 02743 [61 AD3d 627] |
| April 7, 2009 |
| Appellate Division, Second Department |
| Persephone DaCosta, Appellant, v Trade-WindsEnvironmental Restoration, Inc., et al., Respondents, et al.,Defendants. |
—[*1] Mound Cotton Wollan & Greengrass, New York, N.Y. (Michael Rubin of counsel), forrespondent Trade-Winds Environmental Restoration, Inc. Harvey & Vandamme, New York, N.Y. (Jose M. Gomez of counsel), for respondents FBEPrince Street, LLC, Pinnacle Self Storage, doing business as City Closets, LLC, and PhilrubRealty Corporation.
In an action, inter alia, to recover damages for injury to personal property, the plaintiffappeals from an order of the Supreme Court, Kings County (Schneier, J.), dated April 22, 2008,which granted the motion of the defendant Trade-Winds Environmental Restoration, Inc., andthe separate motion of the defendants FBE Prince Street, LLC, Pinnacle Self Storage, doingbusiness as City Closets, LLC, and Philrub Realty Corporation pursuant to CPLR 3211 (a) (7) todismiss the third and tenth causes of action insofar as asserted against each of them.
Ordered that the order is modified, on the law, by deleting the provision thereof grantingthose branches of the motions which were to dismiss the third cause of action, and substitutingtherefor a provision denying those branches of the motions; as so modified, the order is affirmed,without costs or disbursements.
The plaintiff Persephone DaCosta operated a recording studio on the third floor of a buildingin Brooklyn owned by the defendant Philrub Realty Corporation (hereinafter Philrub), whichallegedly leased the space to the plaintiff's landlord, the defendant Pinnacle Self Storage, doingbusiness as City Closets, LLC (hereinafter Pinnacle), a subsidiary of the defendant FBE PrinceStreet, LLC (hereinafter FBE). The plaintiff alleged that in February 2006 she was contacted bya representative of the defendant New York City Department of Health and Mental Hygiene andinformed of the [*2]possible presence of anthrax spores in thebuilding. The plaintiff alleged that the defendant Trade-Winds Environmental Restoration, Inc.(hereinafter Trade-Winds), which contracted to perform the anthrax decontamination, damagedpersonal property in her recording studio during the decontamination procedure.
The plaintiff commenced this action, inter alia, to recover damages for injury to her personalproperty, alleging, among other things, negligence, gross negligence, strict liability, conversion,and trespass to chattels against, among others, Trade-Winds, and asserting vicarious liability asto Philrub Realty, Pinnacle, and FBE. The plaintiff also alleged negligent misrepresentationagainst all of the defendants. Trade-Winds moved pursuant to CPLR 3211 (a) (7) to dismiss thethird cause of action alleging strict liability and the tenth cause of action alleging negligentmisrepresentation insofar as asserted against it and, in a separate motion, Philrub, Pinnacle, andFBE moved to dismiss the same causes of action insofar as asserted against them.
The Supreme Court properly granted those branches of the respondents' motions which wereto dismiss the tenth cause of action based on negligent misrepresentation. The respondents'purported declarations that the plaintiff's property would not be harmed during thedecontamination process were, at most, promises of future intent rather than misrepresentationsof existing fact and are not actionable (see New York Fruit Auction Corp. v City of NewYork, 56 NY2d 1015 [1982]; Transit Mgt., LLC v Watson Indus., Inc., 23 AD3d 1152 [2005];River Glen Assoc. v Merrill Lynch Credit Corp., 295 AD2d 274 [2002]; cf. Brown vLockwood, 76 AD2d 721, 731 [1980]).
However, the plaintiff sufficiently alleged the third cause of action to recover damages underthe theory of strict liability. On a motion to dismiss pursuant to CPLR 3211 (a) (7), the courtmay consider affidavits submitted by the plaintiff to remedy any defects in the complaint (seeLeon v Martinez, 84 NY2d 83, 88 [1994]; Rovello v Orofino Realty Co., 40 NY2d633, 635-636 [1976]; Meyer v Guinta, 262 AD2d 463, 464 [1999]). The plaintiff allegedthat the decontamination process was abnormally dangerous in that it involved the use ofchemicals and other toxic substances that were extremely hazardous and harmful to personalproperty, particularly electronic equipment like that in her recording studio. Although theplaintiff could not state the precise chemicals or toxic substances used, the Health and SafetyPlan, which was attached to the complaint and which described the proposed decontaminationprocedure, indicated that certain decontamination methods other than a buffered bleach solution,which were not discussed with the plaintiff, could be used. Accordingly, dismissal of the strictliability cause of action was premature (see CPLR 3211 [d]; Cantor v Levine,115 AD2d 453, 454 [1985]). Skelos, J.P., Dillon, Covello and Leventhal, JJ., concur.