Franzese v. Streets & Avenues Dev. Corp.
| Decision Date | 13 April 2023 |
| Docket Number | Index No. 63586/2022 |
| Citation | 2023 NY Slip Op 50332 (U) |
| Parties | James Franzese and Kristin Franzese, Plaintiffs, v. Streets and Avenues Development Corporation, NIK STANOVIC, PAUL DENNIS ARCHITECTS, PAUL DENNIS DBA PAUL DENNIS ARCHITECTS, AND PAUL DENNIS, INDIVIDUALLY, Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
FOR PLAINTIFFS STEWART A. McMILLAN, ESQ. LAW OFFICES OF STEWART A. McMILLAN
FOR DEFENDANTS PAUL DENNIS ARCHITECTS, PAUL DENNIS d/b/a PAUL DENNIS ARCHITECTS, and PAUL DENNIS CHRISTOPHER W. DENNIS ESQ. LAW OFFICE OF C. W. DENNIS, P.C.
FOR DEFENDANTS STREETS AND AVENUES DEVELOPMENT CORPORATION and NIKOLAS STANOVIC ANDREAS M. KOUDELLOU, ESQ. WELBY, BRADY & GREENBLATT, LLP
The following papers were read on Motion Seq. Nos. 1, 2 and 3. Defendants Paul Dennis d/b/a Paul Dennis Architects and Paul Dennis (hereinafter collectively the Dennis defendants) move (Seq. No.1) for an order pursuant to CPLR 3211(a), dismissing plaintiffs' complaint against the Dennis defendants. Defendants Streets and Avenues Development Corporation and Nik Stanovic (hereinafter collectively the S&A defendants) move (Seq. #2) for an order pursuant to CPLR 3211(a)(7) and 3013 dismissing the third, sixth, ninth and tenth causes of action in plaintiffs' amended complaint as they related to Streets and Avenues Development Corporation, and dismissing the amended complaint in its entirety as it relates to Nik Stanovic on the ground that the amended complaint fails to state a cause of action. Plaintiffs move (Seq. #3) pursuant to CPLR 3025(b) for an order permitting plaintiffs to amend their amended complaint directing service of such amended complaint, and for such other and further relief as this Court deems just and proper.
Notice of Motion (Seq. #1) / Dennis Affirmation in Support / Memorandum of Law in Support / Exhibit..........................................1-4
Affirmation in Opposition / Memorandum of Law in Opposition / Exhibits........................................................................................9-15
Memorandum of Law in Reply.........................................................................................................................................................16
Notice of Motion (Seq. #2) / Stanovic Affidavit in Support / Exhibits Memorandum of Law in Support..........................................17-21
Affirmation in Opposition / Franzese Affidavit in Opposition / Memorandum of Law in Opposition / Exhibits......................................25-32
Stanovic Affidavit in Further Support / Exhibits / Memorandum of Law in Reply .................................................................................34-37
Notice of Motion (Seq. #3) / McMillan Affirmation in Support / Exhibits...............................................................................................38-41
Plaintiffs allege that they entered into a contract with Paul Dennis d/b/a Paul Dennis Architects on August 3, 2021 for purposes of providing architectural drawing, planning and blueprint services for the renovation and extension of their home. Plaintiffs allegedly entered into a contract on November 23 2021 with defendant Nik Stanovic of Streets and Avenues Development Corporation, a general contractor, for the renovation and extension of the home. It is alleged that defendants breached the terms of the contract (NYSCEF doc #18, amended complaint). The Dennis defendants filed a pre-answer motion to dismiss the complaint. Plaintiffs filed an amended complaint as of right pursuant to CPLR 3025(a). The Dennis defendants elect to address their motion to dismiss to plaintiffs' amended complaint (Dennis defendants' Reply Memorandum of Law, p. 4). The S&A defendants' motion to dismiss addresses the amended complaint.
In considering a motion to dismiss for failure to state a cause of action, the pleading must be liberally construed. The Court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. The standard is whether the pleading states a cause of action (Houtenbos v Fordune Assn., Inc., 200 A.D.3d 662 [2d Dept 2021]). The court may consider affidavits submitted by the plaintiff to remedy any defect in the complaint and the facts alleged therein must be assumed to be true (Barry's Auto Body of NY, LLC v Allstate Fire & Cas. Ins. Co., 190 A.D.3d 807 [2d Dept 2021]). However, bare legal conclusions are not presumed to be true and are not accorded every favorable inference (Breytman v Olinville Realty LLC, 54 A.D.3d 703 [2d Dept 2008]). When the moving party submits evidentiary material in support of the motion the criterion becomes whether the proponent of the pleading has a cause of action, not whether he has stated one (Sokol v Leader, 74 A.D.3d 1180 [2d Dept 2010]). Whether a plaintiff can ultimately establish the allegations is not part of the calculus (Dee v Rakower, 112 A.D.3d 204 [2d Dept 2013]).
Second Cause of Action for Breach of Contract [2]
Plaintiffs' second cause of action sounds in breach of contract as against the Dennis defendants (NYSCEF doc #18, p. 20). Plaintiffs allege in part that the Dennis defendants breached their obligations under the August 3, 2021 contract by providing architectural services that were not in compliance with codes, providing plans that failed inspection several times, failing to compensate plaintiffs for delays, and wrongfully terminating the contract (NYSCEF doc #18, p. 21). The elements of a cause of action for breach of contract are the existence of a contract, plaintiff's performance pursuant to the contract, defendant's failure to perform, and resulting damages (Kausal v Educational Prods. Info. Exch. Inst., 105 A.D.3d 909 [2d Dept 2013]; Nandlal v Al-Pros Constr., Inc., 55 Misc.3d 1217 [A], 2017 NY Slip Op 50620[U] [Sup Ct, Queens County 2017]). Where a homeowner alleges a contractor breached its undertaking to perform a renovation in a good and workmanlike manner, a cause of action for breach of contract may be properly asserted (West Park Assoc., Inc. v Cohen, 43 A.D.3d 818 [2d Dept 2007]; Jeffries v Willow Woodworking, Inc., 40 Misc.3d 1205[A], 2013 NY Slip Op 50148[U] [Sup Ct, Westchester County 2013]). The complaint alleges facts sufficient to state a cause of action for breach of contract. Insofar as plaintiffs assert that they are entitled to recover damages for mental suffering occasioned by breach of contract, plaintiffs do not cite to any controlling caselaw in support of this argument (see Plaintiffs' Memorandum of Law in Opposition to S&A Defendants' Motion, p. 15).
Plaintiffs' third cause of action sounds in negligence as against the S&A defendants (NYSCEF doc #18, p. 22). Plaintiffs allege that the S&A defendants were negligent and reckless in the manner in which they performed work, labor and services for the renovation and extension of plaintiffs' premises, as provided for in the November 23, 2021 contract. Plaintiffs allege that the construction services provided were inferior. It is alleged that the S&A defendants failed to timely complete the construction in compliance with the contract, failed to compensate plaintiffs for delays, and wrongfully terminated the contract (NYSCEF doc #18, p. 23).
Plaintiffs' fourth cause of action sounds in negligence as against the Dennis defendants (NYSCEF doc #18, p. 26). Plaintiffs allege that the Dennis defendants were negligent and reckless in the planning, drafting and/or drawing of architectural plans, drawings and blueprints for the renovation and extension of plaintiffs' premises, as provided for in the August 3, 2021 contract. It is alleged that they failed to provide the same free from errors and omissions, and in conformity with the applicable rules and regulations. It is alleged that the Dennis defendants provided architectural services which were inferior and below the standard common to the industry, failed to timely complete the construction in conformity with the contract, failed to compensate plaintiffs for delays, and wrongfully terminated the contract (NYSCEF doc #18, p. 27-28).
Plaintiffs do not plead a cognizable cause of action sounding in negligence as against the Dennis defendants. (Kollatz v KOS Bldg. Group LLC, 188 A.D.3d 1175, 1178 [2d Dept 2020], quoting 431 Conklin Corp. v Rice, 181...
To continue reading
Request your trial