| Carpenter v Plattsburgh Wholesale Homes, Inc. |
| 2011 NY Slip Op 02770 [83 AD3d 1175] |
| April 7, 2011 |
| Appellate Division, Third Department |
| Mark Carpenter et al., Appellants, v Plattsburgh WholesaleHomes, Inc., Also Known as Plattsburgh Wholesale Mobile Homes, Inc., et al.,Respondents. |
—[*1] James M. Brooks, Lake Placid, for respondents.
Kavanagh, J. Appeals (1) from an order and judgment of the Supreme Court (Ryan, J.),entered April 14, 2010 in Clinton County, which granted defendants' motion to dismiss thesecond amended complaint, and (2) from an order of said court, entered August 17, 2010 inClinton County, which denied plaintiffs' motion for leave to file a third amended complaint.
In October 2007, plaintiffs commenced this action against defendants, alleging, among otherthings, breach of contract, negligence and fraud stemming from a contract agreed to by theparties for the purchase of a modular home. After plaintiffs initially amended this complaint inNovember 2007 and again in April 2008, defendants moved to dismiss it on the ground that itfailed to state a cause of action (see CPLR 3211 [a] [7]). While this motion was pending,plaintiffs agreed to withdraw their claims for breach of contract, indemnification and specificperformance. Supreme Court subsequently granted defendants' motion, dismissing those claimsthat remained in the second amended complaint. Thereafter, plaintiffs moved for leave to onceagain amend the complaint and Supreme Court denied that motion. Plaintiffs now appeal fromthe order and judgment dismissing the second amended complaint, as well as the order denyingtheir motion for leave to file a third amended complaint.[*2]
Initially, plaintiffs contend that Supreme Court erred indismissing their negligence cause of action because they failed to allege that they had sustained apersonal injury as the result of defendants' negligence. Supreme Court found that the damagesalleged by plaintiffs were "contractually based" and the economic loss doctrine served to bar theircauses of action alleging that defendants were negligent (see Bocre Leasing Corp. v GeneralMotors Corp. [Allison Gas Turbine Div.], 84 NY2d 685, 688-689 [1995]; New York Methodist Hosp. v CarrierCorp., 68 AD3d 830, 831 [2009]). While plaintiffs' counsel argues that a claim ofpersonal injury was set forth in the second amended complaint, two complaints—bothidentified as a second amended complaint—appear in the record. One is dated November19, 2008 and contains a personal injury claim and the other is dated March 31, 2008 and doesnot. Because the pleadings appeared inconsistent, the parties agreed on December 15, 2009 thatplaintiffs would proceed on the second amended complaint dated March 31, 2008, i.e., thecomplaint that did not include a claim for personal injury. Thus, when Supreme Court decideddefendants' motion to dismiss, there was no personal injury alleged in the complaint andplaintiffs' cause of action based on negligence was properly dismissed.
Next, plaintiffs argue that Supreme Court erred by dismissing their causes of action based onfraud and rescission. While plaintiffs assert that defendants made certain representations to themto induce them to purchase the modular home, these claims as pleaded are indistinguishable fromthose that plaintiffs made alleging that defendants breached their contract (see Todd vGrandoe Corp., 302 AD2d 789, 791 [2003]; Reiser, Inc. v Roberts Real Estate, 292AD2d 726, 727 [2002]; see also Cropseyv County of Orleans Indus. Dev. Agency, 66 AD3d 1361, 1362 [2009]). Moreover, ingranting defendants' motion to dismiss, Supreme Court noted that plaintiffs failed to sufficientlyset forth in their pleadings the factual circumstances upon which these fraudulent claims werebased (see Moon v Clear Channel Communications, 307 AD2d 628, 631 [2003];Todd v Grandoe Corp., 302 AD2d at 791).[FN1]
Plaintiffs also argue that Supreme Court erred in dismissing the second amended complaintbecause they had valid claims under General Business Law §§ 349, 350 and 777.However, none of these provisions was pleaded in the second amended complaint, and plaintiffsdo not allege any facts that would support a claim based upon these statutoryprovisions.[FN2][*3]
Finally, since Supreme Court properly dismissed thesecond amended complaint, there was no action pending when plaintiffs moved for leave to filethe third amended complaint. As a result, Supreme Court was without the authority to grant leaveto file a third amended complaint and the denial of that motion must also be affirmed.
Mercure, J.P., Peters, Malone Jr. and Stein, JJ., concur. Ordered that the orders and judgmentare affirmed, with costs.
Footnote 1: We reject plaintiffs' claim thatdefendants' motion to dismiss was, in reality, a summary judgment motion and, as such,untimely. In fact, defendants' motion was based on plaintiffs' failure to state a cause of action intheir complaint and can be made at any time (see CPLR 3211 [e]). In addition, plaintiffs,despite their claims to the contrary, were given adequate time to address the arguments raised inthis motion. Moreover, the single motion rule was not violated (see CPLR 3211 [e]) bydefendants having previously moved to dismiss the complaint on the ground that the venue forthis action was inconvenient (see CPLR 327).
Footnote 2: In comparison, their proposedthird amended complaint did contain specific causes of action alleging violations of GeneralBusiness Law §§ 349, 350 and 777.