Environmental Appraisers & Builders, LLC v. Imhof

• Decision Date: 12 October 2016
• Citation: 40 N.Y.S.3d 132,143 A.D.3d 756,2016 N.Y. Slip Op. 06677
• Parties: ENVIRONMENTAL APPRAISERS & BUILDERS, LLC, et al., respondents, v. William M. IMHOF, et al., appellants.
• Court: New York Supreme Court — Appellate Division

143 A.D.3d 756

40 N.Y.S.3d 132

2016 N.Y. Slip Op. 06677

ENVIRONMENTAL APPRAISERS & BUILDERS, LLC, et al., respondents,

v.William M. IMHOF, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 12, 2016.

Kushnick Pallaci, PLLC, Melville, NY (Vincent T. Pallaci of counsel), for appellants.

Wilkofsky, Friedman, Karel & Cummins, New York, NY (Roman Rabinovich of counsel), for respondents.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and SYLVIA O. HINDS–RADIX, JJ.

In an action, inter alia, to recover damages for breach of contract, the defendants appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Suffolk County (Molia, J.), dated June 24, 2014, which, among other things, denied those branches of their motion which were pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against the defendant Kimberlie V. Imhof, for summary judgment dismissing the first, fourth, sixth, and seventh causes of action in the amended complaint insofar as asserted against the defendant William M. Imhof, and for summary judgment on their third counterclaim.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against the defendant Kimberlie V. Imhof, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

In September 2010, the defendant William M. Imhof (hereinafter William), the owner of real property located in Kings Park, New York, entered into a “public adjuster compensation agreement” with the plaintiff Jeffrey M. Osofs for Osofs to negotiate with William's insurance company to receive reimbursement for water damage to the subject property. In April 2011, William entered into a contract with the plaintiff Environmental Appraisers & Builders, LLC (hereinafter EAB), to perform work on the subject property to repair the water damage. In July 2012, EAB filed a notice of mechanic's lien against the property in the sum of $189,876.23, for allegedly unpaid labor and materials.

In February 2013, Osofs and EAB (hereinafter together the plaintiffs) commenced this action, inter alia, to recover damages for breach of contract against William and his daughter, Kimberlie V. Imhof (hereinafter Kimberlie), who allegedly acted as project manager during EAB's work. In the third counterclaim in their answer, the defendants alleged that the plaintiffs diverted trust fund assets under article 3–A of the Lien Law. Thereafter, the defendants moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against Kimberlie, and for summary judgment dismissing the amended complaint insofar as asserted against William. In an order dated June 24, 2014, the Supreme Court, among other things, denied those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against Kimberlie, for summary judgment dismissing the first, fourth, sixth, and seventh causes of action in the amended complaint insofar as asserted against William, and for summary judgment on the third counterclaim.

“In considering a motion to dismiss a cause of action pursuant to CPLR 3211(a)(7), ‘the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ ” (Raach v. SLSJET Mgt. Corp., 134 A.D.3d 792, 793, 20 N.Y.S.3d 613, quoting Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153 ; see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). Here, the plaintiffs failed to state a cause of action alleging breach of contract against Kimberlie, since she was not a party to the contracts between William and each of the plaintiffs (see 1911 Richmond Ave. Assoc., LLC v. G.L.G. Capitol, LLC, 90 A.D.3d 627, 933 N.Y.S.2d 899 ; Walz v. Todd & Honeywell, 195 A.D.2d 455, 599 N.Y.S.2d 638 ), and the plaintiffs effectively alleged that Kimberlie acted as an agent on behalf of a disclosed principal, without alleging that she intended to be personally bound (see Lido Beach Towers v. Denis A. Miller Ins. Agency, Inc.,

128 A.D.3d 1025, 1027, 11 N.Y.S.3d 192 ; Weinreb v. Stinchfield, 19 A.D.3d 482, 483, 797 N.Y.S.2d 521 ). Further, the plaintiffs failed to state a cause of action alleging tortious interference with contract against Kimberlie, since the amended complaint failed to adequately plead that Kimberlie intentionally procured William's alleged breach of the contracts (see

Mawere v. Landau, 130 A.D.3d 986, 989, 15 N.Y.S.3d 120 ). Accordingly, the Supreme Court should have granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against Kimberlie for failure to state a cause of action.

However, the Supreme Court properly denied that branch of the defendants' motion which was for summary judgment dismissing the first cause of action in the amended complaint insofar as asserted against William. The defendants contended that they were entitled to summary judgment dismissing the plaintiffs' first cause of action, to recover damages for breach of contract, because the contract failed to...