Kollatz v. Kos Bldg. Grp., LLC

• Decision Date: 25 November 2020
• Docket Number: 2017-10672,Index No. 52995/17
• Citation: 188 A.D.3d 1175,137 N.Y.S.3d 491
• Parties: Christoph KOLLATZ, appellant, v. KOS BUILDING GROUP, LLC, et al., respondents.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1175

137 N.Y.S.3d 491

Christoph KOLLATZ, appellant,

v.KOS BUILDING GROUP, LLC, et al., respondents.

2017-10672

Index No. 52995/17

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

Submitted - October 5, 2020

November 25, 2020

Cozen O'Connor, New York, NY (Amanda L. Nelson of counsel), for appellant.

Michele A. Murphy, Mamaroneck, NY, for respondents.

ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, JEFFREY A. COHEN, HECTOR D. LASALLE, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, breach of warranty, fraud, and negligence, the plaintiff appeals from an order of the Supreme Court, Westchester County(Linda S. Jamieson, J.), dated August 7, 2017.The order, insofar as appealed from, granted those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the causes of action alleging breach of contract, breach of warranty, fraud, and negligence in the construction of certain residential property owned by the plaintiff.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging fraud insofar as asserted against the defendantKOS Building Group, LLC, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.

In April 2015, the plaintiff entered into a contract with the defendant9 Seneca Road, LLC(hereinafter Seneca), to purchase a newly-constructed house located in Scarsdale (hereinafter the Contract of Sale), which was accompanied by a limited warranty also signed by those parties.The house was constructed by the defendantKOS Building Group, LLC(hereinafter KOS, and together with Seneca, the defendants).Following the closing in June 2015, the plaintiff allegedly discovered numerous defects and deficiencies in the construction of the house.Thereafter, the plaintiff contracted with KOS to perform additional work to the house.

In March 2017, the plaintiff commenced this action against the defendants, inter alia, to recover damages for breach of contract, breach of warranty, fraud, and negligence.The defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.The plaintiff opposed the motion, and by order dated August 7, 2017, the Supreme Court, inter alia, granted those branches of the defendants' motion which were to dismiss the causes of action alleging breach of contract, breach of warranty, fraud, and negligence in the construction of the house.The plaintiff appeals.

"To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law"( Garcia v. Polsky, Shouldice & Rosen, P.C.,161 A.D.3d 828, 829, 77 N.Y.S.3d 424[internal quotation marks omitted];seeGould v. Decolator,121 A.D.3d 845, 847, 994 N.Y.S.2d 368 )."On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory"( Pacific W., Inc. v. E & A Restoration, Inc.,178 A.D.3d 834, 835, 111 N.Y.S.3d 906;seeLeon v. Martinez,84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ).When evidentiary material is submitted on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, "the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the motion should not be granted unless the movant can show that a material fact as claimed by the plaintiff is not a fact at all and unless it can be said that no significant dispute exists regarding it"( Pacific W., Inc. v. E & A Restoration, Inc.,178 A.D.3d at 835, 111 N.Y.S.3d 906;seeLeon v. Martinez,84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ).

We agree with the Supreme Court's determination to grant those branches of the defendants' motion which were to dismiss the causes of action alleging breach of contract and breach of warranty insofar as asserted against KOS."The essential elements of a cause of action to recover damages for breach of contract are (1) the existence of a contract, (2)the plaintiff's performance pursuant to the contract, (3)the defendant's breach of its contractual obligations, and (4) damages resulting from the breach"( Arnell Constr. Corp. v. New York City Sch. Constr. Auth.,144 A.D.3d 714, 715, 41 N.Y.S.3d 101;seeLegum v. Russo,133 A.D.3d 638, 639, 20 N.Y.S.3d 124 ).The defendants' submissions conclusively established that KOS was not a party to the Contract of Sale or a warrantor under the limited warranty, and thus, is not liable for any breaches thereunder (seeNatoli v. NYC Partnership Hous. Dev. Fund Co., Inc.,103 A.D.3d 611, 613, 960 N.Y.S.2d 137;Pacific Carlton Dev. Corp. v. 752 Pac., LLC,62 A.D.3d 677, 678, 878 N.Y.S.2d 421 ).

We agree with the Supreme Court's grant of that branch of the defendants' motion which was to dismiss the cause of action alleging breach of contract insofar as asserted against Seneca.The complaint alleged that Seneca breached the Contract of Sale, in part, based on its purported failure to construct the house pursuant to certain written specifications.

The defendants' submissions conclusively demonstrated that the specifications, which was unsigned and undated, was not referenced or incorporated into the Contract of Sale, and thus, utterly refuted the allegation that Seneca breached any purported contractual duty arising therefrom (cf.Tiffany at Westbury Condominium v. Marelli Dev. Corp.,40 A.D.3d 1073, 1076, 840 N.Y.S.2d 74;Biancone v. Bossi,24 A.D.3d 582, 584, 806 N.Y.S.2d 694 ).

The complaint also alleged that Seneca breached the Contract of Sale because certain aspects of the house violated applicable provisions of the building code.The plaintiff relies on paragraph 10(a) of the Contract of Sale, which required Seneca to "comply with all notes or notices of violations of law ... noted or issued as of the date of closing."The complaint, however, indicates that the plaintiff did not discover the purported violations until after he took possession of the house.The plain language of the subject provision applies only to notes or notices of violations issued as of the date of closing (seeRoga v. Westin,212 A.D.2d 685, 685–686, 622 N.Y.S.2d 777 ).Accordingly, the Contract of Sale, submitted by the defendants, utterly refuted the plaintiff's factual allegations concerning so much of the breach of contract cause of action as was predicated on alleged building code violations and served as a defense as a matter of law.

We further agree with the Supreme Court's determination granting that branch of the defendants' motion which was to dismiss the cause of action alleging breach of warranty...