DEMURJIAN v. 661 187 LLC (2021)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered August 9, 2019, which, insofar as appealed from as limited by the briefs, granted the motion of defendant Michael Demurjian (Michael) and cross-claim defendant 661 West 187 Street LLC (661 West) to dismiss defendant/cross-claim plaintiff 187 Street Mazal Manager's (Mazal) first cross claim for indemnification/contribution and third cross claim for fraud, unanimously affirmed, without costs.

By a Purchase Agreement dated as of September 24, 2012, Mazal purchased six parcels of property in Upper Manhattan from Michael and 661 West, which Michael part-owned.  Plaintiffs brought this action asserting a partial ownership interest in the parcels and seeking a judgment voiding the conveyances to Mazal.

For its second cross claim for breach of contract and third cross claim for fraud, Mazal claims identical quanta and measures of damages.  Since the claimed fraud damages are identical both in means of calculation and amount to the claimed contract damages, “the fraud claim is duplicative and must be dismissed” (MBIA Ins. Corp. v. Credit Suisse Sec. [USA] LLC, 165 A.D.3d 108, 114, 84 N.Y.S.3d 157 [1st Dept. 2018] ).  This is so even though Mazal also demands an additional category of punitive damages for the fraud claim (see id. at 115, 84 N.Y.S.3d 157).  We note that, Michael's contentions notwithstanding, the motion court did not strike Mazal's requests for punitive damages.

Mazal's first cross claim for indemnification arises from the same facts and again seeks the same damages as Mazal's second cross claim for breach of contract.  Indeed, if Mazal is ultimately entitled to indemnification from Michael, it can only be because Michael breached the Purchase Agreement.  Accordingly, the indemnification cross claim should be dismissed as duplicative of the breach of contract cross claim (see Best v. Law Firm of Queller & Fisher, 278 A.D.2d 441, 442, 718 N.Y.S.2d 397 [2d Dept. 2000], cert denied 534 U.S. 1080, 122 S.Ct. 812, 151 L.Ed.2d 696 [2002] ).