| Rosenblum v Island Custom Stairs, Inc. |
| 2015 NY Slip Op 06127 [130 AD3d 803] |
| July 15, 2015 |
| Appellate Division, Second Department |
[*1]
| Meryl Rosenblum et al., Respondents, v IslandCustom Stairs, Inc., and its Successors and Assigns, et al., Appellants, et al.,Defendants. |
Patrick J. Hackett, Garden City, N.Y., for appellants.
Jeffrey M. Rosenblum, P.C., Great Neck, N.Y. (Jeffrey M. Rosenblum pro se ofcounsel and R. Bertil Peterson of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract, the defendantsIsland Custom Stairs, Inc., and Christopher L. Brett appeal, as limited by their brief, fromstated portions of an order of the Supreme Court, Nassau County (Winslow, J.), enteredOctober 11, 2013, which, inter alia, denied those branches of their motion which werepursuant to CPLR 3211 (a) (7) to dismiss the second through ninth causes of actioninsofar as asserted against them and the first cause of action insofar as asserted againstthe defendant Christopher L. Brett.
Ordered that the order is modified, on the law, by deleting the provisions thereofdenying those branches of the motion of the defendants Island Custom Stairs, Inc., andChristopher L. Brett which were pursuant to CPLR 3211 (a) (7) to dismiss the fourth,sixth, seventh, eighth, and ninth causes of action insofar as asserted against them, andsubstituting therefor provisions granting those branches of the motion; as so modified,the order is affirmed insofar as appealed from, with costs to the plaintiffs.
In determining a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), thecourt must "accept the facts as alleged in the complaint as true, accord plaintiffs thebenefit of every possible favorable inference, and determine only whether the facts asalleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83,87-88 [1994]; see Board ofMgrs. of 136 St. Marks Place Condominium v St. Marks Place Condominiums, II,LLC, 128 AD3d 877 [2015]).
Initially, we reject the appellants' contention that the plaintiffs failed to allege factssufficient to impose individual liability on Christopher L. Brett for the alleged wrongs ofthe corporate defendant, Island Custom Stairs, Inc. (hereinafter ICS), under the doctrineof piercing the corporate veil (see Baker, Sanders, Barshay, Grossman, Fass, Muhlstock &Neuworth, LLC v Comprehensive Mental Assessment & Med. Care, P.C., 110AD3d 1022, 1023-1024 [2013]; cf. Allstate ATM Corp. v E.S.A. Holding Corp., 98 AD3d541, 541-542 [2012]). Inasmuch as the appellants do not otherwise challenge thesufficiency of the allegations regarding the first cause of action, which alleged breach ofcontract, the Supreme Court properly denied that branch of their motion which was todismiss that cause of action insofar as asserted against Brett.
The Supreme Court also properly denied those branches of the appellants' motion[*2]which were to dismiss the second, third, and fifthcauses of action insofar as asserted against them. The second and third causes of action,which alleged breach of express warranty and breach of implied warranty, respectively,were not duplicative of the breach of contract cause of action (see 126 Newton St., LLC vAllbrand Commercial Windows & Doors, Inc., 121 AD3d 651, 655 [2014];Hamlet on Olde Oyster BayHome Owners Assn., Inc. v Holiday Org., Inc., 65 AD3d 1284, 1288 [2009]).Additionally, the complaint adequately stated a cause of action alleging fraud in theinducement, inasmuch as the alleged material misrepresentation was of an "existing fact"(Orchid Constr. Corp. vGottbetter, 89 AD3d 708, 710 [2011]).
The Supreme Court erred, however, in denying those branches of the appellants'motion which were to dismiss the fourth cause of action and the sixth through ninthcauses of action insofar as asserted against them. The fourth cause of action sounded innegligence, but the plaintiffs failed to allege that the appellants breached any dutyindependent of the contract (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70NY2d 382, 389 [1987]; StatenIs. N.Y. CVS, Inc. v Gordon Retail Dev., LLC, 57 AD3d 760, 763 [2008]). Thesixth cause of action, alleging negligent misrepresentation, fails because of the "lack of aspecial relationship distinct from and independent of the contract" (AtkinsNutritionals v Ernst & Young, 301 AD2d 547, 548 [2003]; see AlamoContract Bldrs. v CTF Hotel Co., 242 AD2d 643, 644 [1997]). The seventh cause ofaction, which alleged breach of the covenant of good faith and fair dealing, wasduplicative of the breach of contract cause of action (see Clogher v New York Med. Coll., 112 AD3d 574, 575[2013]). The eighth and ninth causes of action, which alleged breach of fiduciary dutyand constructive fraud, respectively, should have been dismissed insofar as assertedagainst the appellants, as the plaintiffs failed to allege the existence of a fiduciaryrelationship between them and the appellants (see Levin v Kitsis, 82 AD3d 1051, 1054 [2011]; Kallman v Pinecrest ModularHomes, Inc., 81 AD3d 692, 694 [2011]).
The appellants' remaining contention is without merit. Skelos, J.P., Balkin, Chambersand Miller, JJ., concur.