Nastro Contracting Inc. v. Agusta

• Decision Date: 27 July 1995
• Citation: 217 A.D.2d 874,629 N.Y.S.2d 848
• Parties: NASTRO CONTRACTING INC., Respondent, v. John AGUSTA et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 848

629 N.Y.S.2d 848

217 A.D.2d 874

NASTRO CONTRACTING INC., Respondent, v.John AGUSTA et al., Appellants.

Supreme Court, Appellate Division Third Department.

July 27, 1995.

Agusta & Ross(Michael J. Agusta, of counsel), Glendale, for appellants.

Baum & Shawn(Morton I. Baum, of counsel), Monticello, for respondent.

Before MERCURE, J.P., and CREW, CASEY, YESAWICH and SPAIN, JJ.

MERCURE, Justice Presiding.

Appeal from that part of an order of the Supreme Court(Williams, J.), entered July 25, 1994 in Sullivan County, which partially granted plaintiff's cross motion to dismiss various affirmative defenses and counterclaims asserted by defendants and partially denied defendants' motions for, inter alia, orders requiring plaintiff to submit an itemized statement and compelling plaintiff to commence a foreclosure action.

Plaintiff, a construction contractor, filed a mechanic's lien and thereafter commenced this contract action to recover the $10,000 balance allegedly due on two contracts for repairs, remodeling and renovation work on defendants' home and an additional $11,920, alleged to be the reasonable value of extra work performed in connection therewith.Defendants' answer asserted numerous affirmative defenses and counterclaims based upon allegations of culpable conduct and fraudulent inducement, breach of contract, breach of warranty, negligence and wrongful filing and willful exaggeration of the mechanic's lien.Defendants appeal from an order dismissing a number of their affirmative defenses and counterclaims and partially denying motions to require plaintiff to submit an itemized statement and to compel plaintiff to commence an action to foreclose its asserted mechanic's lien.

Initially, we conclude that Supreme Court properly dismissed defendants' seventh affirmative defense and second and third counterclaims, predicated upon claims that plaintiff's principal, Michael Nastro, made misrepresentations concerning plaintiff's professional ability and false promises that he would personally supervise the work.To the extent that they may be read as alleging fraud in the inducement, these claims constitute either a nonactionable promise to perform a future act (see, e.g., Colucci v. O'Brien, 204 A.D.2d 257, 611 N.Y.S.2d 594) or a mere conclusory assertion that plaintiff had no intention of performing the "alleged oral promise at the time it was made"(Chrys v. D.C.G. Dev. Co., 187 A.D.2d 923, 924, 590 N.Y.S.2d 564;see, Greer Real Estate v. Johansen Org., 182 A.D.2d 468, 581 N.Y.S.2d 792).To the extent that the claims allege breach of contract, they are duplicative of defendants' first and fifth counterclaims and, thus, redundant (see, Iazzetta v. Vicenzi, 200 A.D.2d 209, 214, 613 N.Y.S.2d 750, lv. dismissed, 85 N.Y.2d 857, 624 N.Y.S.2d 375, 648 N.E.2d 795).Because defendants have advanced no argument concerning the dismissal of their fourth counterclaim, alleging fraud in the inducement, we deem their appeal abandoned in that regard.

Further, Supreme Court correctly dismissed defendants' fourth affirmative defense because a plaintiff's culpable conduct may not be asserted as a defense to an action for breach of contract (see, McLaughlin, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book7B, CPLR C1411:1, at 386;Schmidt's Wholesale v. Miller & Lehman Constr., 173 A.D.2d 1004, 569 N.Y.S.2d 836).Our review of the record discloses no basis for any allegation of tort liability arising out of a breach...