| Weinstein v Natalie Weinstein Design Assoc., Inc. |
| 2011 NY Slip Op 06103 [86 AD3d 641] |
| July 26, 2011 |
| Appellate Division, Second Department |
| Jennifer Weinstein et al., Appellants, v Natalie WeinsteinDesign Associates, Inc., et al., Respondents. |
—[*1] Kreinces & Rosenberg, P.C., Westbury, N.Y. (Howard S. Rosenberg of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Suffolk County (Costello,J.), dated June 2, 2010, as granted those branches of the defendants' motion pursuant to CPLR3211 (a) (1) and (7) which were to dismiss the second through eleventh causes of action in thecomplaint insofar as asserted against them.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the defendants' motion which were to dismiss the fifth, sixth, seventh, andninth causes of action insofar as asserted against the defendant Natalie Weinstein DesignAssociates, Inc., and substituting therefor provisions denying those branches of the motion; as somodified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiffs commenced the instant action, inter alia, to recover damages for breach of acertain contract pursuant to which the defendant Natalie Weinstein Design Associates, Inc.(hereinafter Design Associates), agreed to provide the plaintiffs with certain interior design anddecorating services at their home in exchange for their payment of a stated fee. The individualdefendants are alleged to be owners and/or employees of the corporation.
The complaint contains 11 causes of action, some of which are asserted against only thedefendant Natalie Weinstein (hereinafter Natalie) and/or Design Associates and others of whichare asserted against all of the defendants. Prior to answering the complaint, the defendants jointlymoved to dismiss each cause of action in the complaint insofar as asserted against them based ondocumentary evidence and/or failure to state a cause of action, and for an award of costs and toimpose sanctions against the plaintiff Lloyd Weinstein and his law firm, which represents theplaintiffs, based on the alleged frivolity of such claims.
In the order appealed from, the Supreme Court granted those branches of the defendants'motion which were to dismiss the second through eleventh causes of action in the [*2]complaint insofar as asserted against them, leaving only the firstcause of action asserted against Design Associates to recover damages for breach of contract. TheSupreme Court denied that branch of the defendants' motion which was for an award of costs andto impose sanctions. The plaintiffs appeal.
Contrary to the plaintiffs' contention, the Supreme Court properly granted that branch of themotion which was to dismiss the second cause of action asserted against Design Associates torecover damages for conversion, since the cause of action, as pleaded, is "predicated on a merebreach of contract" (Wolf v National Council of Young Israel, 264 AD2d 416, 417[1999] [citations omitted]) and, in any event, the allegations in the complaint in general areinsufficient to state a conversion claim (see Independence Discount Corp. v Bressner, 47AD2d 756, 757 [1975]; Laurent v Williamsburgh Sav. Bank, 28 Misc 2d 140, 144[1954]).
In addition, the Supreme Court properly granted those branches of the motion which were todismiss the third and fourth causes of action asserted against all of the defendants to recoverdamages for fraud and fraudulent inducement, respectively. In particular, insofar as the fraud andfraudulent inducement causes of action are asserted against Design Associates, such claims areimpermissibly "premised upon an alleged breach of contractual duties" (Yenrab, Inc. v 794 Linden Realty,LLC, 68 AD3d 755, 757 [2009]; see Gibraltar Mgt. Co., Inc. v Grand Entrance Gates, Ltd., 46 AD3d747, 749 [2007]; Hawthorne Groupv RRE Ventures, 7 AD3d 320, 323 [2004]). Further, insofar as such claims are assertedagainst Natalie, while " 'an agent for a disclosed principal may be held liable to a third partywhere the agent has committed fraud' " (Yenrab, Inc. v 794 Linden Realty, LLC, 68AD3d at 757, quoting Mastropieri v Solmar Constr. Co., 159 AD2d 698, 700 [1990]),even under such circumstances " 'a cause of action to recover damages for fraud will not arisewhen the only fraud charged relates to a breach of contract' " (Yenrab, Inc. v 794 LindenRealty, Inc. LLC, 68 AD3d at 757, quoting Mastropieri v Solmar Constr. Co., 159AD2d at 700), as is the case herein. Additionally, insofar as the fraud and fraudulent inducementcauses of action are asserted against the other individual defendants, such causes of action, aspleaded, do not relate to any promises and representations made by those defendants, and, in anyevent, the allegations in the complaint in general are insufficient to state fraud and fraudulentinducement causes of action as against those defendants (see Lama Holding Co. v SmithBarney, 88 NY2d 413, 421 [1996]).
Further, the Supreme Court properly granted those branches of the motion which were todismiss the eighth cause of action asserted against all of the defendants to recover damages fornegligence. In particular, with respect to the individual defendants, the plaintiffs failed to allegethat those defendants owed the plaintiffs any duty of care (see generally Espinal v MelvilleSnow Contrs., 98 NY2d 136, 138 [2002]; Lauer v City of New York, 95 NY2d 95,100 [2000]) and, with respect to Design Associates, the plaintiffs failed to allege "the violation ofa legal duty independent of the [subject] contract" (Clark-Fitzpatrick, Inc. v Long Is. R.R.Co., 70 NY2d 382, 390 [1987]).
Additionally, the Supreme Court properly granted that branch of the motion which was todismiss the tenth cause of action asserted against Design Associates for rescission, as theplaintiffs failed to allege that "there is lacking complete and adequate remedy at law"(Rudman v Cowles Communications, 30 NY2d 1, 13 [1972]), and to the contrary"damages appear adequate" (Rudman v Cowles Communications, 30 NY2d at 13). Also,the Supreme Court properly granted that branch of the motion which was to dismiss the eleventhcause of action asserted against Design Associates for an accounting, since the plaintiffs failed toalleged "the existence of a confidential or fiduciary relationship and a breach of the duty imposedby that relationship respecting property in which the party seeking the accounting has an interest"(Palazzo v Palazzo, 121 AD2d 261, 265 [1986]).
The plaintiffs' fifth and sixth causes of action asserted against both Design Associates and theindividual defendants seek to recover damages for deceptive business practices and statutoryattorneys' fees, respectively, under General Business Law § 349, and the seventh cause ofaction asserted against Design Associates seeks to recover damages for false advertising.However, insofar as these causes of action are asserted against the individual defendants, theplaintiffs failed to allege any deceptive acts committed by those defendants broadly impactingconsumers at large (see Oswego [*3]Laborers' Local 214Pension Fund v Marine Midland Bank, 85 NY2d 20, 25 [1995]; see Teller v Bill Hayes,Ltd., 213 AD2d 141, 145 [1995]). Accordingly, the Supreme Court properly granted thosebranches of the motion which were to dismiss the deceptive business practices and statutoryattorneys' fees claims insofar as asserted against the individual defendants. On the other hand,with respect to Design Associates, the plaintiffs alleged the type of misleadingconsumer-oriented conduct sufficient to state claims for deceptive business practices and falseadvertising under General Business Law §§ 349 and 350 (see Gaidon v GuardianLife Ins. Co. of Am., 94 NY2d 330, 344 [1999]; Karlin v IVF Am., 93 NY2d 282,293 [1999]; Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85NY2d at 26-27; cf. Teller v Bill Hayes, Ltd., 213 AD2d at 148-149; see generallyGoshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 324 [2002]). As such, the deceptivebusiness practices, attorneys' fees, and false advertising causes of action should not have beendismissed insofar as asserted against Design Associates.
The plaintiffs' ninth cause of action asserted against Natalie and Design Associates seeks torecover punitive damages. With respect to Natalie, this cause of action was properly dismissed inlight of the dismissal of all causes of action asserted against her (see Brualdi v IBERIA, Lineas Aereas deEspaÑa, S.A., 79 AD3d 959, 961 [2010]). On the other hand, with respect toDesign Associates, to the extent the plaintiffs' punitive damages claim stems from the allegationsof deceptive trade practices and false advertising, "such conduct may be considered to be soflagrant as to transcend mere carelessness" (Wilner v Allstate Ins. Co., 71 AD3d 155, 167 [2010] [internalquotation marks omitted]). As such, the punitive damages claim should not have been dismissedinsofar as asserted against Design Associates.
Finally, the defendants' contention, in effect, that the Supreme Court erred in denying thatbranch of their motion which was for an award of costs and to impose sanctions is not properlybefore this Court, as they did not file a notice of appeal or cross appeal from the order (see Regensdorfer v Orange Regional Med.Ctr., 21 AD3d 359, 360 [2005]). Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur.