OMAR v. MOORE II (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting those parts of the motion seeking to dismiss the first and second causes of action against defendants Nu–Era Home Improvement and Sadeq Ahmed, also known as Sadeq Ahmed Alshamari, and as modified the order is affirmed without costs.

Memorandum:  Plaintiff commenced this action seeking to recover damages for, inter alia, breach of contract, negligence, and unjust enrichment arising from defendants' allegedly unsatisfactory performance of construction work on his residence.  Nu–Era Home Improvement and Sadeq Ahmed, also known as Sadeq Ahmed Alshamari, (collectively, defendants) filed a pre-answer motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the amended complaint against them in its entirety.  Supreme Court, inter alia, denied the motion insofar as it sought dismissal of the breach of contract, negligence, and unjust enrichment causes of action.

We agree with defendants that the court erred in denying their motion with respect to the first cause of action, for breach of contract, and we therefore modify the order accordingly.  In the amended complaint, plaintiff alleged that defendants breached the contract appended to that complaint, which was executed only by plaintiff and defendant Michael Moore, II. Defendants are not parties to that contract, and thus they “ ‘indisputably’ demonstrated ‘through evidentiary material’ that plaintiff's allegation that [they were] part[ies] to the [contract at issue] was ‘not a fact at all’ ” (Woss, LLC v. 218 Eckford, LLC, 102 A.D.3d 860, 862, 959 N.Y.S.2d 218 [2d Dept. 2013];  see generally Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [1977];  Liberty Affordable Hous., Inc. v. Maple Ct. Apts., 125 A.D.3d 85, 89–90, 998 N.Y.S.2d 543 [4th Dept. 2015] ).  Furthermore, plaintiff's affidavit submitted in opposition to the motion “did not remedy a defect in pleading but advanced [an] entirely new cause[ ] of action premised on [the alleged existence of a different] agreement without seeking leave to replead or [further] amend the complaint” (Woss, LLC, 102 A.D.3d at 862, 959 N.Y.S.2d 218).

We also agree with defendants that the court erred in denying their motion with respect to the second cause of action, for negligence, and we therefore further modify the order accordingly.  Plaintiff's causes of action sound in contract and not tort because no “legal duty independent of the contract itself has [allegedly] been violated” (Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987];  see 621 Payne Ave., LLC v. Union Free Sch. Dist. No. 1 of N. Tonawanda, 114 A.D.3d 1145, 1145, 979 N.Y.S.2d 887 [4th Dept. 2014];  County of Chautauqua v. Pacos Constr. Co., 195 A.D.2d 1021, 1022, 600 N.Y.S.2d 585 [4th Dept. 1993] ).

We reject defendants' contention that the court erred in denying their motion with respect to the cause of action for unjust enrichment premised on defendants' alleged acceptance of payments for the construction work.  Where, as here, the existence of a controlling contract between the parties has not been conceded by the parties or determined by the motion court, the assertion of a cause of action for breach of contract does not preclude a plaintiff from asserting in the alternative a cause of action for unjust enrichment (see American Tel. & Util. Consultants v. Beth Israel Med. Ctr., 307 A.D.2d 834, 835, 763 N.Y.S.2d 466 [1st Dept. 2003];  Fisher v. A.W. Miller Tech. Sales, 306 A.D.2d 829, 831–832, 762 N.Y.S.2d 205 [4th Dept. 2003];  ME Corp. S.A. v. Cohen Bros., 292 A.D.2d 183, 185–186, 739 N.Y.S.2d 133 [1st Dept. 2002] ).  Contrary to defendants' further contention, we conclude that dismissal of the unjust enrichment cause of action is not warranted based on documentary evidence inasmuch as the receipts in question do not “conclusively establish[ ]” that defendants did not receive payments from plaintiff (Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994]; see generally Georgia Malone & Co., Inc. v. Rieder, 19 N.Y.3d 511, 516, 950 N.Y.S.2d 333, 973 N.E.2d 743 [2012] ).  Moreover, defendants' contention that plaintiff's unjust enrichment claim is barred under the doctrine of unclean hands involves an issue of fact “ ‘that cannot be resolved on [a pre-answer] motion to dismiss’ ” (Cohen & Lombardo, P.C. v. Connors, 169 A.D.3d 1399, 1401, 93 N.Y.S.3d 486 [4th Dept. 2019] ).