| Niagara Falls Water Bd. v City of Niagara Falls |
| 2009 NY Slip Op 05417 [64 AD3d 1142] |
| July 2, 2009 |
| Appellate Division, Fourth Department |
| Niagara Falls Water Board, Respondent-Appellant, v City ofNiagara Falls, Appellant-Respondent. |
—[*1] Hiscock & Barclay, LLP, Buffalo (James P. Domagalski of counsel), forplaintiff-respondent-appellant.
Appeal and cross appeal from an order of the Supreme Court, Niagara County (Richard C.Kloch, Sr., A.J.), entered April 16, 2008. The order granted in part the motion of defendant todismiss the complaint and granted in part the cross motion of plaintiff for leave to amend thecomplaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying that part of the motion to dismiss the first cause of action and reinstating that cause ofaction and by granting that part of the cross motion with respect to that cause of action uponcondition that plaintiff shall serve an amended complaint within 20 days of service of the orderof this Court with notice of entry, and by granting those parts of the motion to dismiss the third,fourth, and fifth causes of action and dismissing those causes of action and by denying thoseparts of the cross motion with respect to those causes of action and as modified the order isaffirmed without costs.
Memorandum: Plaintiff commenced this action seeking to recover funds allegedly duepursuant to the terms of Resolution 2003-90, adopted by defendant's City Council (Resolution),and pursuant to an Acquisition Agreement between the parties. Addressing first plaintiff's crossappeal, we agree with plaintiff that Supreme Court erred in granting that part of defendant'smotion to dismiss the first cause of action, alleging breach of contract, for failure to state a causeof action and in denying that part of plaintiff's cross motion seeking leave to amend the firstcause of action. "In determining whether a complaint fails to state a cause of action, a court isrequired to 'accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit ofevery possible favorable inference, and determine only whether the facts as alleged fit within anycognizable legal theory' " (Daley vCounty of Erie, 59 AD3d 1087, 1087 [2009], quoting Leon v Martinez, 84NY2d 83, 87-88 [1994]; see generally CPLR 3211 [a] [7]). Here, the Resolution setsforth defendant's express undertaking to grant funds in satisfaction of the unpaid water bills ofnonparty Niagara Falls Memorial Medical Center. The complaint and the proposed amendedcomplaint allege that plaintiff was entitled to those funds as an account receivable under the[*2]terms of the Acquisition Agreement. Further, "leave toamend a pleading should be freely granted in the absence of prejudice to the nonmoving partywhere the amendment is not patently lacking in merit" (TAG Mech. Sys., Inc. v V.I.P. Structures, Inc., 63 AD3d 1504,1505 [2009] [internal quotation marks omitted]; see generally CPLR 3025 [b]).Here, defendant has not demonstrated the requisite prejudice that would result from the proposedamendment to the breach of contract cause of action, nor is the proposed amendment to thatcause of action patently lacking in merit. We therefore modify the order accordingly.
We agree with defendant, however, that the court properly granted that part of its motion todismiss the second cause of action, for unjust enrichment. Inasmuch as the AcquisitionAgreement governs the parties' rights with respect to all water-related accounts receivable,plaintiff has no right to quasi-contractual relief (see generally Clark-Fitzpatrick, Inc. v LongIs. R.R. Co., 70 NY2d 382, 389 [1987]). We further agree with defendant that the court erredin denying those parts of its motion to dismiss the remaining causes of action and in grantingthose parts of plaintiff's cross motion with respect to those causes of action. The third cause ofaction, for misrepresentation, is impermissibly "based solely upon a mere failure to performpromises of future acts. A failure so to perform is merely a breach of contract, which must beenforced by an action on that contract" (Wegman v Dairylea Coop., 50 AD2d 108, 113[1975], lv dismissed 38 NY2d 710, 918 [1976]; see Hawthorne Group v RRE Ventures, 7 AD3d 320, 323-324[2004]). The fourth cause of action, seeking declaratory relief, is " 'unnecessary andinappropriate [because] the plaintiff has an adequate, alternative remedy in another form ofaction, such as breach of contract' " (Main Evaluations v State of New York, 296 AD2d852, 853 [2002], appeal dismissed and lv denied 98 NY2d 762 [2002]). Finally, the fifthcause of action, for indemnification, is also duplicative of the breach of contract cause of action.We therefore further modify the order accordingly. Present—Scudder, P.J., Hurlbutt,Peradotto, Green and Gorski, JJ.