| Robertson v Wells |
| 2012 NY Slip Op 03432 [95 AD3d 862] |
| May 1, 2012 |
| Appellate Division, Second Department |
| Ether Robertson, Respondent, v Aswald Wells,Appellant. |
—[*1] Wesley G. Wallen, Bronx, N.Y., for respondent.
In an action to recover damages for breach of contract, fraud, unjust enrichment, and, ineffect, negligence, the defendant appeals, as limited by his brief, from so much of an order of theSupreme Court, Westchester County (Liebowitz, J.), entered July 20, 2011, as denied thosebranches of his motion which were pursuant to CPLR 3211 (a) (1) and (8) to dismiss thecomplaint, pursuant to CPLR 3211 (a) (5) to dismiss, as time-barred, so much of the complaintas, in effect, alleged negligence, and pursuant to CPLR 3211 (a) (7) to dismiss the causes ofaction to recover damages for fraud and unjust enrichment.
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the defendant's motion which were pursuant to CPLR 3211 (a) (5) to dismiss,as time-barred, so much of the complaint as, in effect, alleged negligence, and pursuant to CPLR3211 (a) (7) to dismiss the causes of action to recover damages for fraud and unjust enrichment,and substituting therefor provisions granting those branches of the motion; as so modified, theorder is affirmed insofar as appealed from, with costs to the defendant.
In December 2010 the plaintiff commenced this action alleging, inter alia, that the defendantfailed to properly perform work pursuant to a home improvement contract between the parties.The Supreme Court, inter alia, denied those branches of the defendant's motion which werepursuant to CPLR 3211 (a) (1) and (8) to dismiss the complaint, pursuant to CPLR 3211 (a) (5)to dismiss, as time-barred, so much of the complaint as, in effect, alleged negligence, andpursuant to CPLR 3211 (a) (7) to dismiss the causes of action to recover damages for fraud andunjust enrichment. The defendant appeals, and we modify.
"A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) will be granted only if thedocumentary evidence submitted by the defendant utterly refutes the factual allegations of thecomplaint and conclusively establishes a defense to the claims as a matter of law" (Bodden v Kean, 86 AD3d 524,526 [2011]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Here,the documentary evidence submitted by the defendant, namely, the construction agreement, didnot utterly refute the plaintiff's factual allegations and conclusively establish a defense as a matterof law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; Marom v Anselmo, 90 AD3d 622,624 [2011]). [*2]Accordingly, the Supreme Court properly deniedthat branch of the defendant's motion which was pursuant to CPLR 3211 (a) (1) to dismiss thecomplaint.
However, the Supreme Court should have granted that branch of the defendant's motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action to recover damages forfraud. "In considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the court should'accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possiblefavorable inference, and determine only whether the facts as alleged fit within any cognizablelegal theory' " (Sinensky vRokowsky, 22 AD3d 563, 564 [2005], quoting Leon v Martinez, 84 NY2d 83,87-88 [1994]). "The elements of a cause of action sounding in fraud are a materialmisrepresentation of an existing fact, made with knowledge of the falsity, an intent to inducereliance thereon, justifiable reliance upon the misrepresentation, and damages" (Introna v Huntington Learning Ctrs.,Inc., 78 AD3d 896, 898 [2010]; see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553,559 [2009]). The circumstances constituting the fraud must be stated in detail (see CPLR3016 [b]). Here, the plaintiff failed to allege the essential elements of a cause of action to recoverdamages for fraud, including misrepresentation of a material fact, made with knowledge of thefalsity (see Sargiss v Magarelli, 50AD3d 1117, 1118 [2008], mod 12 NY3d 527 [2009]; Scavo v Allstate Ins.Co., 238 AD2d 571 [1997]).
Similarly, the Supreme Court also should have granted that branch of the defendant's motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action to recover damages forunjust enrichment. "To prevail on a claim of unjust enrichment, a party must show that (1) theother party was enriched, (2) at that party's expense, and (3) that it is against equity and goodconscience to permit [the other party] to retain what is sought to be recovered" (Anesthesia Assoc. of Mount Kisco, LLP vNorthern Westchester Hosp. Ctr., 59 AD3d 473, 481 [2009] [internal quotation marksomitted]). Here, accepting the facts alleged in the complaint as true, and according the plaintiffthe benefit of every favorable inference (see Leon v Martinez, 84 NY2d at 87-88), thecomplaint fails to state a cause of action to recover damages for unjust enrichment.
Finally, the Supreme Court should have granted that branch of the defendant's motion whichwas pursuant to CPLR 3211 (a) (5) to dismiss, as time-barred, so much of the complaint as, ineffect, alleged negligence. The negligence claim is governed by the three-year limitations periodapplicable to injury to property (see CPLR 214 [4]). Since the acts complained ofallegedly took place, at the latest, in May 2007, and the instant action was not commenced untilDecember 2010, so much of the complaint as, in effect, alleged negligence was time-barred.
There is no merit to the defendant's remaining contention, which was addressed to thatbranch of his motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (8). Balkin,J.P., Leventhal, Roman and Sgroi, JJ., concur.