| Natoli v NYC Partnership Hous. Dev. Fund Co., Inc. |
| 2013 NY Slip Op 00723 [103 AD3d 611] |
| February 6, 2013 |
| Appellate Division, Second Department |
| Flora Natoli, Respondent, v NYC PartnershipHousing Development Fund Company, Inc., Defendant, and Strategic ColumbiaEnterprises, LLC, et al., Appellants. |
—[*1] Domenick Napoletano, Brooklyn, N.Y., for respondent.
In an action, inter alia, to recover damages for fraud and breach of a limitedwarranty, the defendants Strategic Columbia Enterprises, LLC, and StrategicDevelopment Group, Inc., appeal, as limited by their notice of appeal and brief, fromstated portions of an order of the Supreme Court, Kings County (Graham, J.), datedNovember 30, 2011, which, inter alia, in effect, denied that branch of their motion whichwas pursuant to CPLR 3211 (a) (1) to dismiss the complaint insofar as asserted againstthem, and granted the plaintiff's cross motion for leave to amend the complaint.
Ordered that the order is modified, on the law, (1) by deleting the provisions thereofdenying those branches of the motion which were pursuant to CPLR 3211 (a) (1) todismiss the first, second, third, and fifth causes of action insofar as asserted against thedefendants Strategic Columbia Enterprises, LLC, and Strategic Development Group,Inc., and substituting therefor provisions granting those branches of the motion, (2) bydeleting the provision thereof denying that branch of the motion which was pursuant toCPLR 3211 (a) (1) to dismiss the fourth cause of action insofar as asserted against thedefendant Strategic Development Group, Inc., and substituting therefor a provisiongranting that branch of the motion, (3) by deleting the provisions thereof granting thosebranches of the cross motion which were for leave to amend the first, second, third, andfifth causes of action insofar as asserted against the defendants Strategic ColumbiaEnterprises, LLC, and Strategic Development Group, Inc., and substituting thereforprovisions denying those branches of the cross motion, and (4) by deleting the provisionthereof granting that branch of the cross motion which was for leave to amend the fourthcause of action insofar as asserted against the defendant Strategic Development Group,Inc., and substituting therefor a provision denying that branch of the motion; as somodified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff commenced this action against, among others, the defendants StrategicColumbia Enterprises, LLC (hereinafter Strategic Columbia), and Strategic DevelopmentGroup, Inc. (hereinafter Strategic Development; hereinafter together the appellants), torecover damages in connection with the construction of a three-family residence. Thecomplaint asserted five causes of [*2]action against theappellants: (1) fraud (the first cause of action), (2) negligent misrepresentation (thesecond cause of action), (3) grossly negligent misrepresentation (the third cause ofaction), (4) breach of warranty (the fourth cause of action), and (5) fraud in theinducement (the fifth cause of action).
The appellants moved, among other things, pursuant to CPLR 3211 (a) (1) to dismissthe complaint insofar as asserted against them. The plaintiff opposed the motion andcross-moved for leave to amend the complaint. The Supreme Court, in effect, denied thatbranch of the appellants' motion which was pursuant to CPLR 3211 (a) (1) to dismiss thecomplaint insofar as asserted against them, and granted the plaintiff's cross motion forleave to amend the complaint.
CPLR 3211 (a) (1) provides that a defendant may move to dismiss a cause of actionon the ground that "a defense is founded upon documentary evidence." A CPLR 3211 (a)(1) motion may be granted "only where the documentary evidence utterly refutesplaintiff's factual allegations, conclusively establishing a defense as a matter of law"(Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leonv Martinez, 84 NY2d 83, 88 [1994]; Midorimatsu, Inc. v Hui Fat Co., 99 AD3d 680 [2012]).
Here, the documentary evidence submitted by the appellants included a PurchaseAgreement which contained specific disclaimer provisions by which the plaintiffdisavowed reliance upon any representations extrinsic to that agreement. The PurchaseAgreement conclusively established the appellants' defense to the first, second, third, andfifth causes of action, and therefore, the Supreme Court should have granted thosebranches of the appellants' motion which were to dismiss those causes of action insofaras asserted against them (see Danann Realty Corp. v Harris, 5 NY2d 317, 320[1959]; Yellow Book Sales &Distrib. Co., Inc. v Hillside Van Lines, Inc., 98 AD3d 663, 664 [2012]; Laxer v Edelman, 75 AD3d584, 586 [2010]; Rigney vMcCabe, 43 AD3d 896, 896 [2007]; see also Citibank v Plapinger, 66NY2d 90, 93 [1985]; Orlando vKukielka, 40 AD3d 829, 831 [2007]).
The fourth cause of action alleged that the appellants breached a limited warrantythat was incorporated into the Purchase Agreement. The complaint alleged that theplaintiff gave the appellants timely and appropriate notice of "structural problems," andthat the appellants breached the limited warranty by failing to correct those problems.
As an initial matter, the Supreme Court should have granted that branch of theappellants' motion which was pursuant to CPLR 3211 (a) (1) to dismiss the fourth causeof action insofar as asserted against Strategic Development, since the PurchaseAgreement demonstrates that it was not a party to that agreement (see Black Car & Livery Ins., Inc. vH&W Brokerage, Inc., 28 AD3d 595, 595-596 [2006]; Blank vNoumair, 239 AD2d 534, 534 [1997]).
However, the Supreme Court properly denied that branch of the appellants' motionwhich was pursuant to CPLR 3211 (a) (1) to dismiss the fourth cause of action insofar asasserted against Strategic Columbia. Contrary to the appellants' contention, many of thematerials provided in support of their motion to dismiss did not constitute "documentaryevidence" (CPLR 3211 [a] [1]; see Integrated Constr. Servs., Inc. v Scottsdale Ins. Co., 82AD3d 1160, 1163 [2011]), and their submissions were, in any event, insufficient toconclusively demonstrate, as a matter of law, that the allegations constituting the fourthcause of action were untimely under the terms of the Purchase Agreement, or that theplaintiff failed to follow the claim provisions contained in the limited warranty (see generally Sobel vAnsanelli, 98 AD3d 1020, 1022 [2012]; Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d1149, 1150 [2010]).
Leave to amend a pleading should be freely granted where the proposed amendmentis not palpably insufficient or patently devoid of merit and will not prejudice or surprisethe opposing party (see CPLR 3025 [b]; Negvesky v United Interior Resources, Inc., 32 AD3d 530,531 [2006]). Upon application of the above standard, we conclude that the plaintiff'scross motion for leave to amend the complaint should have been denied to the extent thatit pertained to the first, second, third, and fifth causes of action, and to the extent that itpertained to so much of the fourth cause of action as was asserted against StrategicDevelopment. However, the Supreme Court properly granted the plaintiff's cross motionto the extent that she sought leave to amend the fourth cause of action insofar [*3]as it was asserted against Strategic Columbia.
The parties' remaining contentions either are without merit or need not be addressedin light of our determination. Skelos, J.P., Dillon, Hall and Miller, JJ., concur.