Dember Const. Corp. v. Staten Island Mall
| Decision Date | 10 March 1977 |
| Parties | DEMBER CONSTRUCTION CORPORATION, Plaintiff-Respondent, v. STATE ISLAND MALL, a joint venture, et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
H. S. Elovich, New York City, for plaintiff-respondent.
J. Newman, New York City, for defendants-appellants.
Before MURPHY, J.P., and LUPIANO, NUNEZ, MARKEWICH and LYNCH, JJ.
Order, Supreme Court, New York County, entered on October 15, 1976, denying the defendants' motion to dismiss the plaintiff's ninth cause of action and to dismiss the entire amended complaint as to the defendant Feist & Feist, unanimously reversed, on the law and the motion granted. Defendants-appellants shall recover of plaintiff-respondent $60 costs and disbursements of this appeal.
The ninth cause of action seeks damages to the plaintiff's reputation arising out of the defendants' alleged breach of contract. Such a claim is not actionable (Amaducci v. Metropolitan Opera Association, 33 A.D.2d 542, 304 N.Y.S.2d 322).
All eleven causes of action of the complaint arise out of a contract a copy of which is provided by the defendant-appellant Feist & Feist as the documentary defense asserted on its motion to dismiss under CPLR 3211(a)(1). Despite Feist & Feist not having been a signatory to the contract, Special Term denied its motion because of the complaint's allegations 'that Feist & Feist was heavily involved in all phases of the planning and execution of the contract'. Apart from the complaint's own allegation that Feist & Feist was the managing agent of the signatory defendants and hence could be expected to have been involved in the planning and execution of the contract, its obligations in an action arising out of the contract must be determined from the contract itself and not from the plaintiff's allegations in the complaint of its obligations (Miglietta v. Kennecott Copper Corp., 25 A.D.2d 57, 266 N.Y.S.2d 936; La Potin v. Julius Lang Co., 30 A.D.2d 527, 290 N.Y.S.2d 619). Since Feist & Feist was not a party to the contract, the complaint against it must be dismissed. Special Term also denied Feist & Feist's motion because it mistakenly found that it had signed the letter terminating the contract. Actually the letter was signed by Blackfriars Realty Corp., a signer of the contract.
Not until the motion to dismiss did the plaintiff raise the allegation that the corporate form of the actual signers of the...
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