| Torok v Moore's Flatwork & Founds., LLC |
| 2013 NY Slip Op 03898 [106 AD3d 1421] |
| May 30, 2013 |
| Appellate Division, Third Department |
| Alex Torok Jr., et al., Respondents, v Moore's Flatwork &Foundations, LLC, Appellant. |
—[*1] O'Connell & Aronowitz, Plattsburgh (Dean Schneller of counsel), forrespondents.
McCarthy, J. Appeal from an order of the Supreme Court (Meyer, J.), entered May29, 2012 in Essex County, which, among other things, denied defendant's motion todismiss the complaint.
Plaintiffs received a proposal from defendant for the construction of footings and afoundation for a new home on plaintiffs' property. Plaintiff Alex Torok Jr. signed theproposal and plaintiffs paid a down payment to defendant. After defendant set thefootings, poured the foundation and asserted that the work was complete, plaintiffsdiscovered that defendant had failed to set some of the footings as called for in theirplans. To remedy the situation, plaintiffs hired an engineer and new contractors toremove part of the existing foundation, add the missing footings, reinstall heating pipesand pour a new foundation. Plaintiffs commenced this action alleging breach of contract,negligent performance, fraudulent misrepresentation and breach of warranty. Defendantmoved to dismiss the complaint on the ground that, among other things, the complaintfailed to state a cause of action. Supreme Court, among other things, denied defendant'smotion. Defendant appeals.
When considering a motion to dismiss pursuant to CPLR 3211 (a) (7), the question iswhether the plaintiffs have a cause of action, not whether they have stated one (seeGuggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Scheffield v Vestal Parkway Plaza,LLC, 102 AD3d 992, 993 [2013]). On such a motion, we must afford thecomplaint a liberal construction, "accept the facts as alleged in the pleading as true,confer on the plaintiff[s] the [*2]benefit of every possibleinference and determine whether the facts as alleged fit within any cognizable legaltheory" (Scheffield v Vestal Parkway Plaza, LLC, 102 AD3d at 993; see Simkin v Blank, 19 NY3d46, 52 [2012]; ABNAMRO Bank, N.V. v MBIA Inc., 17 NY3d 208, 227 [2011]). Courts mayconsider affidavits submitted in opposition to such a motion to cure any defects in thecomplaint (see Sargiss vMagarelli, 12 NY3d 527, 531 [2009]; Lazic v Currier, 69 AD3d 1213, 1214 [2010]).
Alex Torok has stated a cause of action for breach of contract, but plaintiff Sally A.Torok has not. Although only the second page of the proposal was attached as an exhibitto the complaint, plaintiffs stated that this was a clerical error and attached the fullproposal to Alex Torok's affidavit. The proposal is signed by Alex Torok. While it is notsigned on behalf of defendant, the proposal states that it becomes effective as a contractafter it is executed by the property owner and approved by defendant's managingmember. A handwritten notation on the proposal indicates that the down payment wasreceived on the date of the proposal. The complaint states that the down payment waspaid initially, and Alex Torok's affidavit states that plaintiffs paid the full amount of thecontract to defendant. Giving plaintiffs the benefit of every favorable inference,defendant apparently approved the contract because defendant accepted the downpayment and performed the proposed work. The complaint alleges that defendant failedto set all of the footings required by the contract and failed to set the footings in aworkmanlike manner, and plaintiffs suffered related damages. These allegationsadequately set forth the elements of a breach of contract cause of action for Alex Torok:formation of a contract between him and defendant, performance by plaintiffs, failure toperform by defendant and resulting damages (see Brighton Inv., Ltd. v Har-Zvi, 88 AD3d 1220, 1221[2011]; McCormick vFavreau, 82 AD3d 1537, 1541 [2011], lv denied 17 NY3d 712 [2011]).However, because only Alex Torok signed the proposal and there are no allegations thatSally Torok entered into a contract with defendant, Supreme Court should havedismissed the breach of contract cause of action asserted by her.
Supreme Court should have dismissed the negligence and fraudulentmisrepresentation causes of action. "[A] simple breach of contract claim is not to beconsidered a tort unless a legal duty independent of the contract itself has been violated. . . [, which] legal duty must spring from circumstances extraneous to, andnot constituting elements of, the contract" (Clark-Fitzpatrick, Inc. v Long Is. R.R.Co., 70 NY2d 382, 389 [1987]). Plaintiffs have not demonstrated any specialrelationship or legal duty aside from the contractual relationship (see Scott vKeyCorp, 247 AD2d 722, 725 [1998]; Fort Ann Cent. School Dist. v Hogan,206 AD2d 723, 724-725 [1994]; compare Sergeants Benevolent Assn. Annuity Fund v Renck,19 AD3d 107, 111 [2005]). The negligence and fraudulent misrepresentation claimsare based upon the same alleged wrongful conduct as the breach of contract claim,rendering them duplicative (seeOP Solutions, Inc. v Crowell & Moring, LLP, 72 AD3d 622, 622 [2010]; Heffez v L & G Gen. Constr.,Inc., 56 AD3d 526, 527 [2008]). Therefore, those causes of action cannot stand.
Supreme Court also should have dismissed the breach of warranty claim. Althoughthe proposal contains a guarantee regarding the quality of the concrete, plaintiffs do notallege that the materials were substandard. Plaintiffs instead allege that the work was notperformed correctly. "No warranty attaches to the performance of a service. If the serviceis performed negligently, the cause of action accruing is for that negligence. Likewise, ifit constitutes a breach of contract, the action is for that breach" (Aegis Prods. vArriflex Corp. of Am., 25 AD2d 639, 639 [1966] [citation omitted]; accord Town of Poughkeepsie vEspie, 41 AD3d 701, 706[*3][2007], lvdismissed 9 NY3d 1003 [2007], lv denied 15 NY3d 715 [2010];Rochester Fund Muns. v Amsterdam Mun. Leasing Corp., 296 AD2d 785, 787[2002]). Thus, only the breach of contract cause of action alleged by Alex Torok isviable.
Rose, J.P., Spain and Egan Jr., JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as denied defendant's motion to dismissall causes of action alleged by plaintiff Sally A. Torok and the second, third and fourthcauses of action alleged by plaintiff Alex Torok Jr.; motion granted to that extent andsaid causes of action dismissed; and, as so modified, affirmed.