| Cohn v Titan Drilling Corp. |
| 2010 NY Slip Op 09360 [79 AD3d 925] |
| December 17, 2010 |
| Appellate Division, Second Department |
| Steven Cohn, Plaintiff, v Titan Drilling Corp., Defendant. (ActionNo. 1.) Titan Drilling Corp., Appellant, v Steven Cohn, Respondent. (Action No.2.) |
—[*1] Steven Cohn, P.C., Carle Place, N.Y. (Susan E. Dantzig of counsel), for respondent.
In related actions, inter alia, to recover damages for breach of contract, Titan Drilling Corp., theplaintiff in action No. 2, appeals, as limited by its brief, from so much of an order of the Supreme Court,Nassau County (Brandveen, J.), dated December 17, 2009, as, upon reargument, vacated its priordetermination in an order of the same court entered July 27, 2009, granting its motion for summaryjudgment on the complaint in action No. 2, and thereupon denied that motion.
Ordered that the order dated December 17, 2009, is reversed insofar as appealed from, on thelaw, and, upon reargument, the determination in the order entered July 27, 2009, granting the plaintiff'smotion for summary judgment on its complaint in action No. 2 is adhered to.
Contrary to the determination of the Supreme Court upon reargument, the defendant in action No.2, Steven Cohn, failed to demonstrate that the original determination of the Supreme Court in an orderentered July 17, 2009, was erroneous. Indeed, the record underlying that order reveals that the plaintiffin action No. 2, Titan Drilling Corp. (hereinafter Titan), demonstrated its prima facie entitlement tojudgment as a matter of law by establishing that it was retained by Cohn to install a well at certainpremises, that it performed the agreed-upon services in accordance with the terms and specificationsset forth in the parties' written contract, and that the balance due for its services remained unpaid byCohn (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; M & R Rockaway, LLC v SK Rockaway RealEstate Co., LLC, 74 AD3d 759, 760 [2010]). In opposition, Cohn failed to raise a triableissue of fact, as his opposition papers attempted to introduce parol evidence concerning allegedadditional terms of the contract even though the written contract was complete and unambiguous on itsface (see Vermont Teddy Bear Co. v 538Madison Realty Co., 1 NY3d 470, 475 [2004]; W.W.W. Assoc. v Giancontieri, 77NY2d 157, 163 [1990]; Thomas v Scutt, 127 NY 133, [*2]138, 141 [1891]; Eighmie v Taylor, 98 NY 288, 297 [1885]; Harris v Hallberg, 36 AD3d 857, 859[2007]; Waters, Inc. v March, 240 App Div 120, 125 [1934]).
Cohn's argument that certain parol evidence proved fraud in the inducement was improperly raisedfor the first time on reargument (see V.Veeraswamy Realty v Yenom Corp., 71 AD3d 874 [2010]; Pryor v Commonwealth Land Tit. Ins. Co.,17 AD3d 434, 435-436 [2005]; Amatov Lord & Taylor, Inc., 10 AD3d 374, 375 [2004]). In any event, the alleged fraud was notpleaded with the requisite specificity under CPLR 3016 (b) (see Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491-492[2008]; Morales v AMS Mtge. Servs.,Inc., 69 AD3d 691, 692 [2010]), and Cohn did not assert facts which made out all of thematerial elements of fraud distinct from his cause of action based on breach of the contract (see Colasacco v Robert E. Lawrence RealEstate, 68 AD3d 706, 708 [2009]; J.M. Bldrs. & Assoc., Inc. v Lindner, 67 AD3d 738, 741-742 [2009];Harris v Hallberg, 36 AD3d at 859; Couri v Westchester Country Club, 186 AD2d712, 714 [1992]).
Cohn's remaining contentions are without merit. Mastro, J.P., Fisher, Roman and Sgroi, JJ.,concur.