DIONISIO v. GEO DE RUE CONTRACTORS INC (2007)

In 1997 defendant contracted with plaintiff Allesandro Bertoni and Vito Dionisio, who is now deceased, to construct, inter alia, a roadway with a “binder” depth of two inches.   A “binder course” is “a coarse aggregate bound with bitumen between the foundation and the wearing course of an asphalt pavement” (Webster's Third New International Dictionary 217 [1993] ).   Construction of the roadway was completed in November 1997, and final payment for that roadway was made in May 1999.   Plaintiffs commenced this action for breach of contract after discovering, in July 2003, that the roadway had not been constructed with a two-inch binder course.   Defendant moved for summary judgment dismissing the complaint as barred by the statute of limitations, and plaintiffs cross-moved for leave to amend the complaint to add a cause of action for fraud.   We conclude that Supreme Court properly granted defendant's motion and denied plaintiffs' cross motion.

 Contrary to plaintiffs' contention, equitable estoppel did not serve to toll the statute of limitations on the underlying breach of contract cause of action.   Here, there is an alleged concealment without any actual misrepresentation, and thus “estoppel is appropriate only where there is a fiduciary relationship that ‘gave ․ defendant[ ] an obligation to inform [Allesandro and Vito] of facts underlying the claim’ ” (Niagara Mohawk Power Corp. v. Freed, 288 A.D.2d 818, 819, 733 N.Y.S.2d 828, quoting Gleason v. Spota, 194 A.D.2d 764, 765, 599 N.Y.S.2d 297).   In this case, there is no evidence of such a relationship.

 Contrary to the further contention of plaintiffs, the court properly denied their cross motion for leave to amend the complaint.  “Although leave to amend pleadings should be freely granted (see CPLR 3025[b] ), leave is properly denied where, as here, the proposed amendment plainly lacks merit” (A.R. Mack Constr. Co. v. Patricia Elec., 5 A.D.3d 1025, 1026, 773 N.Y.S.2d 643;  see Manufacturers & Traders Trust Co. v. Reliance Ins. Co., 8 A.D.3d 1000, 1001, 778 N.Y.S.2d 600;  Christiano v. Chiarenza, 1 A.D.3d 1039, 1040, 767 N.Y.S.2d 377).   Plaintiffs are correct that fraudulent concealment is a viable cause of action in New York (see generally P.T. Bank Cent. Asia, N.Y. Branch v. ABN AMRO Bank N.V., 301 A.D.2d 373, 376, 754 N.Y.S.2d 245;  Swersky v. Dreyer & Traub, 219 A.D.2d 321, 326, 643 N.Y.S.2d 33).   In this case, however, the proposed fraudulent concealment cause of action “may not be independently asserted” because it arises from the same facts that serve as the basis for the breach of contract cause of action (Dec v. Auburn Enlarged School Dist., 249 A.D.2d 907, 908, 672 N.Y.S.2d 591;  see Ross v. DeLorenzo, 28 A.D.3d 631, 636, 813 N.Y.S.2d 756;  Todd v. Grandoe Corp., 302 A.D.2d 789, 791, 756 N.Y.S.2d 658;  Schunk v. New York Cent. Mut. Fire Ins. Co., 237 A.D.2d 913, 915, 655 N.Y.S.2d 210).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: