| Putnam County Sav. Bank v Aditya |
| 2012 NY Slip Op 00501 [91 AD3d 840] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| Putnam County Savings Bank, Respondent, v Kamal K.Aditya et al., Defendants/Third-Party Plaintiffs-Appellants, and Robert J. Hentschel, Respondent,et al., Defendants. Aditya Family Dynasty Trust of 2002, Third-Party Plaintiff-Appellant;Contemporary Environmental Management et al., Third-Party Defendants-Respondents, et al.,Third-Party Defendants. (Action No. 1.) Putnam County Savings Bank, Respondent, v Kamal K.Aditya et al., Defendants/Third-Party Plaintiffs-Appellants, and Robert J. Hentschel, Respondent,et al., Defendant. Contemporary Environmental Management et al., Third-PartyDefendants-Respondents, et al., Third-Party Defendants. (Action No. 2.) Putnam County SavingsBank, Respondent, v Kamal K. Aditya et al., Defendants/Third-Party Plaintiffs-Appellants, andRobert J. Hentschel, Respondent, et al., Defendants. Contemporary Environmental Managementet al., Third-Party Defendants-Respondents, et al., Third-Party Defendants. (Action No. 3.) |
—[*1] Daniels and Porco, LLP, Carmel, N.Y. (Robert C. Lusardi of counsel), forplaintiff-respondent in action Nos. 1, 2, and 3. Perry Dean Freedman, White Plains, N.Y., for defendant-respondent in action Nos. 1, 2, and3, and third-party defendants-respondents in action Nos. 1, 2, and 3.
In three related actions to recover on guarantees, Kamal K. Aditya and Rajib K. [*2]Aditya, defendants/third-party plaintiffs in action Nos. 1, 2, and 3,and the Aditya Family Dynasty Trust of 2002, a defendant/third-party plaintiff in action Nos. 2and 3, and a third-party plaintiff in action No. 1, appeal, as limited by their brief, from so muchof an order of the Supreme Court, Putnam County (Nicolai, J.), dated March 15, 2010, as deniedtheir joint cross motion, made with nonparties 40 Glastonbury, LLC, HS Eagle Road Associates,LLC, 33 Broad Street Restaurant Group, LLC, and Route 9 Poughkeepsie, LLC, for leave toamend the pleadings in all three actions to add those nonparties as third-party plaintiffs, andgranted those branches of the motion of Robert J. Hentschel, a defendant in action Nos. 1, 2, and3, and Contemporary Environmental Management, Inc., and Bedford Professional Associates,LLC, third-party defendants in action Nos. 1, 2, and 3, which were pursuant to CPLR 3211 (a)(5) and (7) to dismiss the cross claims alleging breach of contract and fraud insofar as assertedagainst Robert J. Hentschel in all three actions, and the third-party causes of action allegingbreach of contract and fraud insofar as asserted against Contemporary EnvironmentalManagement, Inc. and Bedford Professional Associates, LLC, in all three actions.
Ordered that the order is modified, on the law, by deleting the provision thereof grantingthose branches of the motion of Robert J. Hentschel, a defendant in action Nos. 1, 2, and 3, andContemporary Environmental Management, Inc., and Bedford Professional Associates, LLC,third-party defendants in action Nos. 1, 2, and 3, which were pursuant to CPLR 3211 (a) (5) todismiss the cross claim alleging breach of contract insofar as asserted against Robert J. Hentschelin all three actions, and the third-party cause of action alleging breach of contract insofar asasserted against Contemporary Environmental Management, Inc., and Bedford ProfessionalAssociates, LLC, in all three actions, and substituting therefor a provision denying thosebranches of the motion; as so modified, the order is affirmed insofar as appealed from, with onebill of costs to the respondents appearing separately and filing separate briefs.
The Supreme Court providently exercised its discretion in denying the appellants' joint crossmotion, made with nonparties 40 Glastonbury, LLC, HS Eagle Road Associates, LLC, 33 BroadStreet Restaurant Group, LLC, and Route 9 Poughkeepsie, LLC, for leave to amend theirpleadings in these three related actions to add the nonparties as third-party plaintiffs. "Where theproposed amended pleading is palpably insufficient or patently devoid of merit, or where thedelay in seeking the amendment would cause prejudice or surprise, the motion for leave to amendshould be denied" (Lucido vMancuso, 49 AD3d 220, 229 [2008]; see Scofield v DeGroodt, 54 AD3d 1017, 1018 [2008]). Here, theproposed amendment is palpably insufficient, as the appellants lack standing to assert derivativeclaims on behalf of the nonparty limited liability companies (cf. Clark v Trois, 21 AD3d 439, 440 [2005]; Tal vMalekan, 305 AD2d 281, 281 [2003]).
The Supreme Court also properly granted those branches of the motion of Robert J.Hentschel, a defendant in action Nos. 1, 2, and 3, and Contemporary EnvironmentalManagement, Inc. (hereinafter CEM), and Bedford Professional Associates, LLC (hereinafterBedford), third-party defendants in action Nos. 1, 2, and 3 (hereinafter collectively therespondents), which were pursuant to CPLR 3211 (a) (7) to dismiss the cross claim allegingfraud insofar as asserted against Hentschel in all three actions, and the third-party cause of actionalleging fraud insofar as asserted against CEM and Bedford in all three actions. "A cause ofaction alleging fraud will not lie where the only claim of fraud relates to a breach of contract, anda mere misrepresentation of an intention to perform under the contract is insufficient to allegefraud" (Mendelovitz v Cohen, 37AD3d 670, 671 [2007] [citations omitted]; see Ross v DeLorenzo, 28 AD3d 631, 636 [2006]; WITHolding Corp. v Klein, 282 AD2d 527, 528 [2001]). Here, the appellants failed tosufficiently allege that they were induced to enter into the alleged agreement by amisrepresentation of any material fact collateral to the contract.
However, the Supreme Court erred in granting that branch of the motion of Hentschel, CEM,and Bedford which was pursuant to CPLR 3211 (a) (5) to dismiss the cross claim alleging breachof contract insofar as asserted against Hentschel in all three actions, and the third-party cause ofaction alleging breach of contract insofar as asserted against CEM and Bedford in all threeactions. The appellants' breach of contract cause of action does not allege a promise to answer forthe debt of another, and is not barred by the statute of frauds (see General ObligationsLaw § 5-701 [a] [2]; Paribas Props. v Benson, 146 AD2d 522, 525 [1989]). Skelos,J.P., Hall, Lott and Roman, JJ., concur.