| Dabrowski v ABAX Inc. |
| 2009 NY Slip Op 05639 [64 AD3d 426] |
| July 2, 2009 |
| Appellate Division, First Department |
| Jerzy Dabrowski et al., Respondents, v ABAXIncorporated et al., Appellants. |
—[*1] Goetz Fitzpatrick, LLP, New York (Bernard Kobroff of counsel), for John Bleckman andEdward Monaco, appellants. Virginia & Ambinder, LLP, New York (LaDonna M. Lusher of counsel), forrespondents.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered May 12, 2008,which, to the extent appealed from as limited by the brief, denied so much of defendants' motionas sought to dismiss the causes of action for breach of public works contracts, quantum meruitand unjust enrichment, failure to pay New Jersey prevailing wages on New Jersey public workscontracts, and piercing the corporate veil, unanimously modified, on the law, to grant so much ofthe motion as sought to dismiss the causes of action for quantum meruit, unjust enrichment andpiercing the corporate veil, and otherwise affirmed, without costs. Order, same court and Justice,entered September 26, 2008, which denied defendants' motion to renew the prior motion,unanimously affirmed, without costs.
The motion court did not improperly schedule resolution of that part of defendant ABAX'smotion that sought to deny class certification until after the answer has been served (seeDavid B. Lee & Co. v Ryan, 266 AD2d 811, 812-813 [1999]).
By identifying the construction projects to which the contracts applied, listing some of theprojects from the VENDEX database, and identifying the prevailing wage provision mandatedby Labor Law § 220, plaintiffs pleaded the breach of contract causes of action withsufficient particularity (see CPLR 3013). Accordingly, regardless of whether plaintiffs'affidavits in opposition to the motion to dismiss complied with CPLR 2101 (b), the breach ofcontract causes of action are sufficient without regard to the allegations contained in theaffidavits. Nor was the inclusion of breach of contract claims based on New Jersey lawinappropriate.
However, the cause of action for piercing the corporate veil to hold the individual defendantsliable should have been dismissed, since the sole allegation of "domination" in the complaint isthat the principals made the decisions for the corporation (see 210 E. 86th St. Corp. vGrasso, 305 AD2d 156 [2003]). The quantum meruit and unjust enrichment causes of actionalso should have been dismissed because they arise out of subject matter covered by express[*2]contracts and the validity of the contracts are not in dispute(see IDT Corp. v Morgan Stanley DeanWitter & Co., 12 NY3d 132, 142 [2009]).
With respect to the motion to renew based on the arbitration award, further development ofthe factual record is needed before the collateral estoppel effects, if any, of the award can bedetermined.
Finally, defendants' argument that the Labor Law claims are preempted by the LaborManagement Relations Act has been expressly rejected (see Wysocki v Kel-Tech Constr. Inc., 46 AD3d 251 [2007]).Concur—Andrias, J.P., Sweeny, McGuire, Acosta and Richter, JJ. [See 19 Misc3d 1134(A), 2008 NY Slip Op 51005(U).]