HO v. STAR CONTRACTORS INC (2024)

Order, Supreme Court, New York County (Melissa A. Crane, J.), entered on or about February 2, 2023, which to the extent appealed from as limited by the briefs, granted defendants’ motion to dismiss plaintiffs’ cause of action for breach of fiduciary duty (second cause of action), the cause of action for negligence (third cause of action), and the cause of action for fraud (fourth cause of action), unanimously affirmed, without costs.

Plaintiffs failed to state a claim for breach of fiduciary duty against defendant contractor and its individual principals because, as the homeowners, plaintiffs lack standing under article 3–A of the Lien Law to assert a cause of action for breach of fiduciary duty against a contractor (see Albstein v. Elany Contr.  Corp., 30 AD3d 210, 210 [1st Dept 2006], lv. denied 7 NY3d 712 [2006];  see also Ferro Fabricators, Inc. v 1807–1811 Park Ave. Dev. Corp., 127 AD3d 479, 479 [1st Dept 2015]).

Supreme Court properly dismissed the fraud cause of action as duplicative of the breach of contract cause of action, as it does not allege a breach of any duty independent of the parties’ construction agreement (see Matter of Soames v 2LS Consulting Eng'g, D.P.C., 187 AD3d 490, 491 [1st Dept 2020]).  Rather, the fraud claim is based on allegations that defendants falsely misrepresented certain work to have been performed when it actually was not.  Thus, any allegedly fraudulent misrepresentations were not collateral to the contract and did not induce the contract, but simply constituted alleged misstatements about the work contemplated under the contract (see Deerfield Communications Corp. v Chesebrough–Ponds, Inc., 68 N.Y.2d 954, 956 [1986];  Inspirit Dev. & Constr., LLC v. GMF 157 LP, 203 AD3d 430, 432 [1st Dept 2022]).

Furthermore, Supreme Court properly dismissed the negligence cause of action as duplicative of the breach of contract cause of action, as plaintiffs allege no duty distinct from defendants’ contractual obligations (see Clark Fitzpatrick, Inc. v. Long Island R. Co., 70 N.Y.2d 382, 389 [1987]).  The negligence cause of action is predicated on claims of shoddy work and damages caused by the outside elements to materials and inadequately protected areas of the building, but these matters are addressed by article 13 of the parties’ construction agreement.  The negligence claim therefore alleges nothing more than negligent performance of a contract (see Kordower–Zetlin v. Home Depot U.S.A., Inc., 134 AD3d 556, 557 [1st Dept 2015]).

We have considered plaintiffs’ remaining arguments and find them unavailing.