| Stangel v Zhi Dan Chen |
| 2010 NY Slip Op 05383 [74 AD3d 1050] |
| June 15, 2010 |
| Appellate Division, Second Department |
| Frank J. Stangel, Individually and as Executor of CatherineStangel, Deceased, Appellant, v Zhi Dan Chen et al., Respondents, et al.,Defendants. |
—[*1] Robert Alan Saasto, Hicksville, N.Y., for respondents Zhi Dan Chen and Yuen Liang. Xian Feng Zou, Flushing, N.Y., respondent pro se. L'Abbate, Balkan, Colavita, & Contini, LLP, Garden City, N.Y. (Scott E. Kossove ofcounsel), for respondents Louis Cardenas and Re/Max Universal, Inc.
In an action, inter alia, to recover damages for fraud and breach of contract, the plaintiffappeals (1), as limited by his brief, from so much of an order of the Supreme Court, QueensCounty (Butler, J.), dated August 18, 2008, as granted those branches of the motion of thedefendants Louis Cardenas and Re/Max Universal, Inc., and those branches of the separatemotion of the defendant Xian Feng Zou which were pursuant to CPLR 3211 to dismiss the first,second, third, fourth, sixth, seventh, eighth, ninth, and nineteenth causes of action insofar asasserted against them, (2) as limited by his brief, from so much of an order of the same courtdated April 29, 2009, as granted those branches of the motion of the defendants Zhi Dan Chenand Yuen Liang which were for summary judgment dismissing the first, second, third, fourth,sixth, seventh, eighth, ninth, eighteenth, and nineteenth causes of action insofar as assertedagainst them, and (3) from an order of the same court (Mayersohn, J.), dated May 14, 2009,which denied their motion, in effect, for a preliminary injunction restraining the defendants ZhiDan Chen and Yen Liang from, inter alia, encumbering or selling the subject property during thependency of the action and granted the cross motion of the defendants Zhi Dan Chen and YenLiang to cancel a notice of pendency.
Ordered that the orders dated August 18, 2008, and April 29, 2009, are affirmed insofar asappealed from; and it is further,
Ordered that the order dated May 14, 2009, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants Louis Cardenas and Re/MaxUniversal, Inc., the defendant Xian Feng Zou, and the defendants Zhi Dan Chen and Yen Liang,[*2]appearing separately and filing separate briefs, payable bythe plaintiff.
This action arises from the sale of residential real property by the plaintiff Frank J. Stangel,acting in his capacity as executor of the estate of his deceased mother, to the defendants Zhi DanChen and Yuen Liang. The contract of sale included a rider that prohibited the demolition of thehouse located on the property (hereinafter the "no demolition" clause). After closing, Chen andLiang allegedly violated the "no demolition" clause. Stangel, in his individual and representativecapacities, commenced this action against, in relevant part, Chen and Liang; the defendant XianFeng Zou, who was the attorney representing Chen and Liang at the closing; and Louis Cardenasand Re/Max Universal, Inc. (hereinafter together the Remax defendants), who were the plaintiff'sreal estate agents. The plaintiff asserted, among others, causes of action alleging fraud, breach ofcontract, and intentional infliction of emotional distress based primarily upon allegations thatChen and Liang fraudulently induced him into entering the contract of sale by misrepresentingthat they would comply with the "no demolition" clause, and that the other defendants colludedwith Chen and Liang in their fraudulent scheme to induce him to enter into the contract of sale.Punitive damages were also sought.
The Remax defendants and Zou separately moved to dismiss the complaint insofar asasserted against them for failure to state a cause of action. In an order dated August 18, 2008, theSupreme Court granted, inter alia, those branches of the Remax defendants' motion which wereto dismiss the fraud causes of action, the cause of action alleging intentional infliction ofemotional distress, and the claims for punitive damages as to them. The Supreme Court alsogranted Zou's motion and dismissed the entire complaint insofar as asserted against him.Thereafter, the defendants Chen and Liang, in effect, moved to dismiss the causes of actionalleging fraud and intentional infliction of emotional distress for failure to state a cause of actionand for summary judgment dismissing the remaining causes of action of the complaint insofar asasserted against them. In an order dated April 29, 2009, the Supreme Court granted, inter alia,those branches of their motion which were to dismiss the fraud causes of actions, the intentionalinfliction of emotional distress cause of action, and the claims for punitive damages andrescission.
The plaintiff also moved for injunctive relief to, inter alia, restrain the sale of the property byChen and Liang during the pendency of this action. Chen and Liang cross-moved to cancel thenotice of pendency on the property. In an order dated May 14, 2009, the Supreme Court deniedthe plaintiff's motion and granted Chen and Liang's cross motion.
Contrary to the plaintiff's contentions, the Supreme Court properly dismissed the causes ofaction alleging fraud, fraudulent inducement, fraudulent misrepresentation, and conspiracy tocommit fraud asserted against the Remax defendants, Zou, and Chen and Liang. In this regard,"[a] cause of action to recover damages for fraud does not lie where the only fraud claimedrelates to an alleged breach of contract" (McGee v J. Dunn Constr. Corp., 54 AD3d 1010, 1010 [2008]; see Gibraltar Mgt. Co., Inc. v GrandEntrance Gates, Ltd., 46 AD3d 747, 749 [2007]). Moreover, a general allegation that aparty entered into the contract while lacking the intent to perform is insufficient to state a causeof action to recover damages for fraud (see New York Univ. v Continental Ins. Co., 87NY2d 308, 318 [1995]; McGee v J. Dunn Constr. Corp., 54 AD3d at 1010; Rocchio v Biondi, 40 AD3d 615,616 [2007]).
Here, the plaintiff's fraud causes of action are premised upon the general allegations thatChen and Liang did not intend to honor the "no demolition" clause and that the Remaxdefendants and Zou concealed and/or misrepresented Chen and Liang's intent to comply withthis clause of the contract of sale. The alleged misrepresentation by Chen and Liang is notcollateral or extraneous to the contract of sale, but is about their obligation to comply with aprovision of the contract of sale itself. Consequently, the fraud causes of action asserted againstChen and Liang and the cause of action seeking rescission of the contract of sale based uponfraud in the inducement were properly dismissed (see McGee v J. Dunn Constr. Corp.,54 AD3d at 1010; Gibraltar Mgt. Co., Inc. v Grand Entrance Gates, Ltd., 46 AD3d at749; Rocchio v Biondi, 40 AD3d at 616).
Additionally, the fraud causes of action asserted against the Remax defendants and Zou,which are also predicated upon Chen and Liang's alleged undisclosed intent to breach the "nodemolition" [*3]clause, were also properly dismissed. In thisregard, Chen and Liang's alleged intention to violate this provision of the contract of sale is amatter completely beyond the control of the Remax defendants and Zou, and themisrepresentation allegedly relied upon is not a material fact or a matter within the peculiarknowledge of these defendants (seeF.A.S.A. Constr. Corp. v Degenshein, 47 AD3d 877, 879 [2008]; Lane vMcCallion, 166 AD2d 688, 690 [1990]).
The Supreme Court also properly dismissed the purported causes of action seeking torecover punitive damages for fraud, fraudulent inducement, fraudulent misrepresentation, andconspiracy to commit fraud. New York does not recognize an independent cause of action forpunitive damages (see Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603,616 [1994]). In light of the dismissal of the underlying fraud causes of action, the plaintiff'sdemand for punitive damages cannot, in any event, be sustained. Moreover, the plaintiff'sallegations against the Remax defendants, Zou, and Chen and Liang, assuming their truth, wereinsufficient, as they amounted to ordinary allegations of fraud and breach of contract (seeRocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d at 613; Tartaro v Allstate Indem. Co., 56AD3d 758, 758 [2008]; Kelly v Defoe Corp., 223 AD2d 529, 529-530 [1996];Sforza v Health Ins. Plan of Greater N.Y., 210 AD2d 214, 215 [1994]).
The plaintiffs failed to allege the required extreme and outrageous conduct on the part of therespondents which could cause intentional infliction of emotional distress (see Howell v NewYork Post Co., 81 NY2d 115, 121 [1993]). Consequently, the Supreme Court properlydismissed the cause of action alleging intentional infliction of emotional distress asserted againstthe respondents.
As the Supreme Court correctly determined, the plaintiff's motion to enjoin Chen and Liangfrom, inter alia, encumbering or selling the property was, in effect, a motion for a preliminaryinjunction. Therefore, the plaintiff was required to establish a likelihood of success on the merits,irreparable injury in the absence of an injunction, and a balance of the equities in his favor(see CPLR 6301; Aetna Ins. Co. v Capasso, 75 NY2d 860, 862 [1990]; W.T.Grant Co. v Srogi, 52 NY2d 496, 517 [1981]; Dav-El Servs., Inc. v Commonwealth Worldwide Chauffeured Transp. ofNY, LLC, 21 AD3d 928 [2005]). The plaintiff failed to establish a likelihood of successon the merits since the fraud causes of action and the cause of action seeking rescission of thecontract based upon the alleged fraud were properly dismissed. The only surviving cause ofaction asserted against Chen and Liang was to recover damages for breach of contract. Theplaintiff also failed to demonstrate irreparable injury since he did not establish that monetarydamages would be inadequate compensation for his remaining breach of contract cause of actionagainst Chen and Liang (see Etzion vEtzion, 62 AD3d 646, 655 [2009]; Leo v Levi, 304 AD2d 621, 623 [2003];Betesh v Jemal, 209 AD2d 568, 569 [1994]).
Contrary to the plaintiff's contentions, the Supreme Court also properly granted Chen andLiang's cross motion to cancel the notice of pendency. In this regard, CPLR 6501 provides that"[a] notice of pendency may be filed in any action . . . in which the judgmentdemanded would affect the title to, or the possession, use or enjoyment of, real property." Here,19 out of the 20 causes of action originally asserted by the plaintiffs sought money damages. Theonly cause of action which could have affected title to the property, the cause of action seekingrescission of the contract, was dismissed in the order dated April 29, 2009. Accordingly, therewas no longer any basis to warrant the notice of pendency (see CPLR 6501; Shkolnik v Krutoy, 32 AD3d 536,537 [2006]; Distinctive Custom HomesBldg. Corp. v Esteves, 12 AD3d 559, 559 [2004]).
We decline Zou's request for the imposition of sanctions as neither the plaintiff nor hiscounsel engaged in sanctionable conduct (see 22 NYCRR 130-1.1 [c]; Alter v Levine, 57 AD3d 923, 925[2008]; Arciniega v Arciniega, 48AD3d 607, 607 [2008]). To the extent that Zou seeks review of the denial of that branch ofhis motion which was for the imposition of sanctions in the Supreme Court, Zou did notcross-appeal from that part of the order dated August 18, 2008, so the issue is not properlybefore us. Skelos, J.P., Florio, Hall and Austin, JJ., concur.