Green v. Dolphy Const. Co., Inc.

• Decision Date: 23 November 1992
• Citation: 590 N.Y.S.2d 238,187 A.D.2d 635
• Parties: James GREEN, Appellant, v. DOLPHY CONSTRUCTION CO., INC., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 238

590 N.Y.S.2d 238

187 A.D.2d 635

James GREEN, Appellant, v. DOLPHY CONSTRUCTION CO., INC., et al., Respondents.

Supreme Court, Appellate Division Second Department.

Nov. 23, 1992.

J. Owen Zurhellen, III, New York City (Martin J. Rosenblatt, of counsel), for appellant.

Before THOMPSON, J.P., and EIBER, COPERTINO and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from (1) so much of a judgment of the Supreme Court, Kings County (Williams, J.), entered October 24, 1990, as, after an inquest to determine damages upon the defendants' default in answering, dismissed the second, third, and fifth causes of action asserted in the complaint, and granted judgment on the first cause of action against the defendant Dolphy Construction Co., Inc., only, and (2) an order of the same court, entered November 7, 1990, which denied his motion to modify the judgment, or for a renewed inquest on damages.

ORDERED that the judgment is affirmed insofar as appealed from, without costs or disbursements; and it is further ORDERED that the order is affirmed, without costs or disbursements.

Although all allegations contained in the complaint have been admitted because of the defendants' default (see, Rokina Opt. Co. v. Camera King, 63 N.Y.2d 728, 480 N.Y.S.2d 197, 469 N.E.2d 518; McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605), the legal conclusions to be drawn from such proof are reserved for the court's determination (see, CPLR 3215[b], [e]; Silberstein v. Presbyterian Hosp. in City of N.Y., 96 A.D.2d 1096, 463 N.Y.S.2d 254; Wine Antiques v. St. Paul Fire & Mar. Ins. Co., 40 A.D.2d 657, 336 N.Y.S.2d 550, affd. 34 N.Y.2d 781, 358 N.Y.S.2d 773, 315 N.E.2d 813; 4 Weinstein-Korn-Miller, NY Civ Prac, p 3215.25). Where a valid cause of action is not stated, the party moving for judgment is not entitled to the requested relief, even on default (see, Cree v. Cree, 124 A.D.2d 538, 541, 507 N.Y.S.2d 683).

The Supreme Court correctly dismissed the second, third, and fifth causes of action. The second cause of action sounds in fraud. The plaintiff alleges fraudulent inducement to enter into the building renovation contract with the corporate defendant, a contract the latter abandoned after partially completing the job in a defective manner. Allegations of scienter will not transform what is essentially a breach of contract cause of action into one to recover damages for fraud where, as here, the fraud charged has to do with alleged misrepresentations of the breaching party's abilities and intentions (see, Propoco Inc. v. Ostreicher, 134 A.D.2d 580, 521 N.Y.S.2d 482; Kotick v. Desai, 123 A.D.2d 744, 507 N.Y.S.2d 217; C.B. Western Financial Corp. v. Computer Consoles, 122 A.D.2d 10, 504 N.Y.S.2d 179). In any event, although the corporate defendant allegedly misrepresented that it was licensed by the New York City Consumer Affairs Department, the complaint alleges that its license was revoked in December 1987, several months after the subject contract was entered into in August 1987.

Further, although the complaint alleges that the corporate defendant entered into the contract without any intent to perform (see, Tribune Print. Co. v. 263 Ninth Ave. Realty, 57 N.Y.2d 1038, 457 N.Y.S.2d 785, 444 N.E.2d 35), the complaint also alleges partial, if shoddy, performance. Thus, the fraud cause of action was properly dismissed.

As to the third cause of action, alleging breach of a 10-year warranty, no oral or written agreement is pleaded. Further, the sole reference to a warranty of any kind to be found in the minutes of the inquest is a reference to a sign at the location of the...