Rosenblum v. Island Custom Stairs, Inc.

• Decision Date: 15 July 2015
• Docket Number: 2014-01048
• Citation: Rosenblum v. Island Custom Stairs, Inc., 2015 NY Slip Op 6127, 130 A.D.3d 803, 14 N.Y.S.3d 82 (N.Y. App. Div. 2015)
• Parties: Meryl ROSENBLUM, et al., respondents, v. ISLAND CUSTOM STAIRS, INC., etc., et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 803

14 N.Y.S.3d 82

2015 N.Y. Slip Op. 06127

Meryl ROSENBLUM, et al., respondents

v.ISLAND CUSTOM STAIRS, INC., etc., et al., appellants, et al., defendants.

2014-01048

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

July 15, 2015.

Patrick J. Hackett, Garden City, N.Y., for appellants.

Jeffrey M. Rosenblum, P.C., Great Neck, N.Y. (Jeffrey M. Rosenblumpro se of counsel and R. Bertil Peterson of counsel), for respondents.

PETER B. SKELOS, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ.

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendantsIsland Custom Stairs, Inc., and Christopher L. Brett appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Nassau County(Winslow, J.), entered October 11, 2013, which, inter alia, denied those branches of their motion which were pursuant to CPLR 3211(a)(7) to dismiss the second through ninth causes of action insofar as asserted against them and the first cause of action insofar as asserted against the defendantChristopher L. Brett.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion of the defendantsIsland Custom Stairs, Inc., and Christopher L. Brett which were pursuant to CPLR 3211(a)(7) to dismiss the fourth, sixth, seventh, eighth, and ninth causes of action insofar as asserted against them, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs.

In determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory”(Leon v. Martinez,84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511;seeBoard of Mrs. of 136 St. Marks Place Condominium v. St. Marks Place Condominiums, II, LLC,128 A.D.3d 877, 11 N.Y.S.2d 175 ).

Initially, we reject the appellants' contention that the plaintiffs failed to allege facts sufficient to impose individual liability on Christopher L. Brett for the alleged wrongs of the corporate defendant, Island Custom Stairs, Inc.(hereinafter ICS), under the doctrine of piercing the corporate veil (see Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuworth, LLC v. Comprehensive Mental Assessment & Med. Care, P.C.,

110 A.D.3d 1022, 1023–1024, 974 N.Y.S.2d 93;cf.Allstate ATM Corp. v. E.S.A. Holding Corp., 98 A.D.3d 541, 541–542, 949 N.Y.S.2d 483 ).Inasmuch as the appellants do not otherwise challenge the sufficiency of the allegations regarding the first cause of action, which alleged breach of contract, the Supreme Court properly denied that branch of their motion which was to dismiss that cause of action insofar as asserted against Brett.

The Supreme Court also properly denied those branches of the appellants' motion which were to dismiss the second, third, and fifth causes of action insofar as asserted against them.The second and third causes of action, which alleged breach of express warranty and breach of implied warranty, respectively, were not duplicative of the breach of contract cause of action (see126 Newton St., LLC v. Allbrand Commercial Windows & Doors, Inc.,121 A.D.3d 651, 655, 993 N.Y.S.2d 558;Hamlet on Olde Oyster Bay Home Owners Assn., Inc. v. Holiday Org., Inc.,65 A.D.3d 1284, 1288, 887 N.Y.S.2d 125 ).Additionally, the complaint adequately stated a cause of action alleging fraud in the...