| Canzona v Atanasio |
| 2014 NY Slip Op 04459 [118 AD3d 841] |
| June 18, 2014 |
| Appellate Division, Second Department |
[*1]
| Christopher Canzona, Appellant, v CharlesAtanasio et al., Respondents. |
Michael B. Schulman & Associates, P.C., Melville, N.Y. (Miro Lati of counsel),for appellant.
Morvillo Abramowitz Grand Iason & Anello P.C., New York, N.Y. (Robert J.Anello and Andrew C. Brunsden of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiffappeals from a judgment of the Supreme Court, Suffolk County (Whelan, J.), datedNovember 8, 2012, which, upon an order of the same court dated August 16, 2012,granting that branch of the defendants' motion which was pursuant to CPLR 3211 (a) todismiss the complaint, is in favor of the defendants and against him dismissing thecomplaint.
Ordered that the judgment is modified, on the law, by deleting the provisions thereofdismissing the first and fifth causes of action; as so modified, the judgment is affirmed,without costs or disbursements, those branches of the defendants' motion which werepursuant to CPLR 3211 (a) to dismiss the first and fifth causes of action are denied, thefirst and fifth causes of action are reinstated and severed, and the order is modifiedaccordingly.
The plaintiff commenced a prior action to recover monies that the defendantsallegedly owed him for his expenditures in connection with a residential property that theparties owned as tenants in common and a boat he co-owns with the defendant CharlesAtanasio. In that action, the Supreme Court granted that branch of the defendants' motionwhich was to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action, and entered a judgment dismissing the complaint with prejudice (seeCanzona v Atanasio, 118 AD3d 837 [2014] [decided herewith]). Thereafter, the plaintiff commenced the instant action torecover the monies that the defendants allegedly owed him, asserting causes of actionsounding in breach of contract, conversion, constructive fraud, breach of fiduciary duty,and unjust enrichment. The defendants moved to dismiss the complaint on severalgrounds, and the Supreme Court granted the motion.
Contrary to the Supreme Court's determination, this action is not barred by thedoctrine of res judicata. "Where a dismissal does not involve a determination on themerits, the doctrine of res judicata does not apply" (Djoganopoulos v Polkes, 67 AD3d 726, 727 [2009]; see Velinskie v Gottlieb, 92AD3d 941, 942 [2012]). Since the complaint in the prior action was dismissed onthe ground [*2]that it failed to state a cause of action dueto the insufficiency of the allegations, the dismissal was not a dismissal on the merits,and the doctrine of res judicata does not bar the claims in the instant action (seeCanzona v Atanasio, 118 AD3d 837 [2014]; Hae Sheng Wang vPao-Mei Wang, 96 AD3d 1005, 1008 [2012]; Pereira v St. Joseph'sCemetery, 78 AD3d 1141, 1142 [2010]; Djoganopoulos v Polkes, 67AD3d at 727; Tortura v SullivanPapain Block McGrath & Cannavo, P.C., 41 AD3d 584, 585 [2007]).
As an alternative ground for dismissal (see Parochial Bus Sys. v Board of Educ.of City of N.Y., 60 NY2d 539, 545 [1983]), the defendants contend that thecomplaint in the instant action failed to state a cause of action. "On a motion to dismissthe complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, thecourt must afford the pleading a liberal construction, accept all facts as alleged in thepleading to be true, accord the plaintiff the benefit of every possible inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty,LLC, 54 AD3d 703, 703-704 [2008]; see Leon v Martinez, 84 NY2d 83,87-88 [1994]). Here, the plaintiff sufficiently pleaded the first cause of action, which wasto recover damages for breach of contract, by alleging all of the essential elements ofsuch a cause of action: the existence of a contract, the plaintiff's performance pursuant tothat contract, the defendants' breach of their contractual obligations, and damagesresulting from that breach (seeDee v Rakower, 112 AD3d 204, 208-209 [2013]; Elisa Dreier Reporting Corp. vGlobal NAPs Networks, Inc., 84 AD3d 122, 127 [2011]; JP Morgan Chase v J.H. Elec. ofN.Y., Inc., 69 AD3d 802, 803 [2010]). Moreover, the plaintiff sufficientlypleaded his fifth cause of action, which was based on unjust enrichment, by alleging thatthe defendants were enriched at his expense, and that it was "against equity and goodconscience to permit the defendant[s] to retain what is sought to be recovered"(Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415, 421 [1972];see Levin v Kitsis, 82 AD3d1051, 1053 [2011]; AHASales, Inc. v Creative Bath Prods., Inc., 58 AD3d 6, 19-20 [2008]; Cruz v McAneney, 31 AD3d54, 59 [2006]).
However, the plaintiff failed to sufficiently plead a cause of action to recoverdamages for conversion (seeDaub v Future Tech Enter., Inc., 65 AD3d 1004, 1006 [2009]; Selinger Enters., Inc. vCassuto, 50 AD3d 766, 768 [2008]; Fiorenti v Central EmergencyPhysicians, 305 AD2d 453, 455 [2003]) or constructive fraud (see CPLR3016 [b]; Treeline 990 StewartPartners, LLC v RAIT Atria, LLC, 107 AD3d 788, 791 [2013]; Orchid Constr. Corp. vGottbetter, 89 AD3d 708, 710 [2011]; Mendelovitz v Cohen, 37 AD3d 670, 671 [2007]).Moreover, the cause of action alleging breach of fiduciary duty is duplicative of thebreach of contract cause of action, since the claims are based on the same facts and seekidentical damages (seeChowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600 [2014]; Hylan Elec. Contr., Inc. v MasTecN. Am., Inc., 74 AD3d 1148, 1150 [2010]; Brooks v Key Trust Co. N.A., 26 AD3d 628, 630[2006]).
The defendants' arguments regarding alternative grounds for dismissal based on thestatute of limitations and the statute of frauds are without merit.
Accordingly, the Supreme Court should have denied those branches of thedefendants' motion which were to dismiss the first and fifth causes of action, whichalleged breach of contract and unjust enrichment, and correctly granted those branches ofthe defendants' motion which were to dismiss the remaining causes of action. Eng, P.J.,Austin, Hinds-Radix and LaSalle, JJ., concur.