KRISTINE LINDSAY v. George Hodosh Associates-Architects, P.C., Defendant(s). (2026)

The following papers numbered 1—3 were (1) read and considered in connection with Defendant's Notice of Motion (Motion Seq. No. 1) for and Order pursuant to Civil Practice Law and Rules § 3211(a)(7), dismissing Plaintiffs JASON KANTER and KRISTINE LINDSAY's First, Third, Fourth, Fifth, Sixth, Seventh and Eighth Causes of Action, along with its requested relief of punitive damages and attorneys' fees, awarding the Defendant's attorneys' fees and costs incurred in defendant this action, and awarding the Defendant such other, further and different relief as this Court deems just and proper under the circumstances; and (2) read and considered in connection with Plaintiff's Notice of Cross Motion (Motion Seq. No. 2) for an Order pursuant to Civil Practice Law and Rules § 3212, granting partial summary judgment dismissing Defendant's counterclaims for unjust enrichment and account stated, and for such other and further relief as this Court deems just and proper:

PAPERS NUMBERS

Notice of Motion (Motion Seq. No. 1)/Affirmation of Christopher J. Biggin, Esq./

Exhibits A-E/Statement of Material Facts/Memorandum of Law in Support 1

Notice of Cross Motion (Motion Seq. No. 2)/Affirmation of Brian K. Condon, Esq./ Response to Statement of Material Facts 2

Affirmation of Lee J. Sackett, Esq. in Opposition and Reply (Motion Seq. Nos. 1

and 2)/Exhibit A 3

PROCEDURAL HISTORY

Plaintiffs commenced the instant action with the e-filing of a Summons and Verified Complaint with annexed documents on February 23, 2024. See NYSCEF Doc. No. 1-4. The Plaintiffs alleged eight (8) causes of action: (1) Negligence, (2) Breach of Contract, (3) Unjust Enrichment, (4) Quantum Meruit, (5) Fraudulent Inducement, (6) Conversion, (7) Willful Exaggeration of a Lien, and (8) Failure to File Proof of a Lien. See NYSCEF Doc. No. 1. Defendant was served personally on February 26, 2024, at 120 North Main Street, Unit 501, New City, New York by service on Audrey Lupachino. See NYSCEF Doc. No. 5. On March 18, 2024, the parties e-filed a Stipulation extending Defendant's time to answer to April 18, 2024. See NYSCEF Doc. No. 6. Defendant subsequently joined issue with the filing of a Verified Answer raising twenty-three (23) Affirmative Defenses and three (3) counterclaims. See NYSCEF Doc. No. 7.

Plaintiffs filed a Note of Issue on November 6, 2025, certifying that the instant action was ready for trial. See NYSCEF Doc. No. 48. On January 5, 2026, Defendant filed the instant motion seeking relief pursuant to Civil Practice Law and Rules § 3211(a)(7). See NYSCEF Doc. Nos. 50-58. Defendant's motion was filed timely in that it was filed within sixty (60) days of the filing of the Note of Issue. Subsequently, on February 5, 2026, the Plaintiffs filed the instant motion seeking relief pursuant to Civil Practice Law and Rules § 3212. See NYSCEF Doc. Nos. 59-61. Plaintiffs' motion was not filed timely, as it was not filed within sixty (60) days of the filing of the Note of Issue.

FACTS

Plaintiffs entered into an architectural proposal with Defendant on January 23, 2020, for renovation work concerning property the Plaintiffs owned at 7 Indian Hill Lane, Palisades, New York. See NYSCEF Doc. No. 57, ¶¶ 1 and 2. Subsequently, on August 26, 2020, Plaintiffs entered into a construction management agreement with the Defendant for "additional architectural services" for the same property. See NYSCEF Doc. No. 57, ¶ 2. Plaintiffs contend that the Defendant was terminated from the "the Project" in September 2023. See NYSCEF Doc. No. 57, ¶ 3. Plaintiffs commenced the instant action on February 23, 2024, seeking damages of no less than $350,000 in addition to punitive damages and attorneys' fees.

DISCUSSION

Defendant's Motion to Dismiss Pursuant to Civil Practice Law and Rules § 3211(a)(7) (Motion Seq. No. 1)

Defendant's Arguments in Support (Motion Seq. No. 1)

Defendant contends that the instant action is "over-pled" in that the causes of action in the Verified Complaint are impermissible, duplicative and beyond the claims in an ordinary breach of contract action. According to Defendant: New York law provides that in a matter in which different causes of action are: (1) based upon a breach of contract, (2) based upon the same underlying conduct, and (3) seek economic loss or contract damages -- then no valid cause of action can sound in negligence, fraudulent inducement, unjust enrichment, quantum meruit and/or conversion.

Additionally, the Defendant asserts that Plaintiffs are not entitled to recovery of punitive damages and/or attorneys' fees due to an alleged of breach of contract. Furthermore, Defendant argues that causes of action for willful exaggeration of a mechanic's lien and to declare the lien terminated should be dismissed. Thus, Defendant is seeking dismissal of Plaintiffs' First, Third, Fourth, Fifth, Sixth, Seventh and Eighth causes of action.

First Cause of Action: Negligence. Defendant contends that the First Cause of Action must be dismissed because the claim against the Defendant arose from the architectural service contracts between the Plaintiffs and the Defendant. Defendant further asserts that a cause of action that alleges negligent work is a breach of contract claim; and when claims of negligent or grossly negligent performance of a contract are alleged -- they are dismissible.

According to the Defendant, the First Cause of Action asserts that the Defendant was negligent and careless in providing the construction management and/or professional services, which are services that arose from the agreements/contracts between the parties. Defendant also contends that the Plaintiffs allege the existence of these agreements/contracts in the Verified Complaint. As a result, the Defendant argues that it does not matter how the Plaintiff labels their cause of action -- the only cognizable cause of action against Defendant is for breach of contract.

Moreover, Defendant contends that a simple breach of contract is not a tort unless there is a legal duty independent of the contract that has been violated. Defendant avers that the negligence allegations are, in essence, a restatement of obligations implied by the contract. Thus, the cause of action is really for breach of contract and the tort claim is duplicative. According to Defendant, Plaintiff have failed to allege that the Defendant breached any duty that was independent of the parties' agreements.

Third Cause of Action: Unjust Enrichment. Defendant contends that the Third Cause of Action seeking unjust enrichment must be dismissed since it is unavailable when a valid, enforceable contract addresses the same subject matter. Further, Defendant asserts that unjust enrichment is a quasi-contract claim and therefore provides for an obligation to be imposed based upon equity for the purpose of preventing an injustice, not upon a contract. According to the Defendant, the Plaintiffs have alleged in the Verified Complaint that they entered into a contract/agreement with the Defendant for services at the subject property and rely upon those contracts as to their claim.

Fourth Cause of Action: Quantum Meruit. Defendant contends that the Fourth Cause of Action must be dismissed since quantum meruit is unavailable when there is a written contract. Further, the Defendant notes that the Plaintiffs have alleged in the Verified Complaint that there was an enforceable contract between the parties concerning the claims. As such, Defendant asserts that the Plaintiff cannot recover in quantum meruit.

Fifth Cause of Action: Fraudulent Inducement. The Defendant contends that the Fifth Cause of Action is unclear but appears to sound in fraudulent inducement and/or intentional misrepresentation, which like the other causes of action is a dismissible "repackaged breach of contract claim." In addition, Defendant asserts that the claim fails to plead any specific facts that would set forth a cause of action for fraud.

According to the Defendant, Plaintiffs allege that the Defendant made false statements and intentional misrepresentations. Defendant avers that the only allegation made by Plaintiffs in the Verified Complaint was that the Defendant threatened to stop working on the project in response to the Plaintiffs' complaints about Defendant's management of the work and construction management fees. Defendant argues that this claim should be dismissed as both duplicative of the breach of contract cause of action and for failing to satisfy the pleading requirements for a fraud claim.

Sixth Cause of Action. Defendant contends that the Sixth Cause of Action is also a "repackaged" breach of contract claim with an unspecified legal theory. In its view, the legal theory is not necessarily relevant — i.e. whether the claim sounds in breach of contract, fraudulent inducement, unjust enrichment, quantum meruit or conversion — because, in any event, it arises out of the alleged breach of the contract.

Further, Defendant asserts that if the Court interprets the Sixth Cause of Action as one for "conversion" then it must be dismissed as duplicative of the breach of contract claim. Additionally, Defendant argues that a conversion claim fails because Plaintiffs allege, in conclusory fashion, that the Defendant accepted the benefits and monies provided by the Plaintiff based upon their contract/agreement and subsequently failed to perform the services as required by the contract/agreement.

Seventh Cause of Action: Willful Exaggeration of a Lien. Defendant contends that the claim alleging willful exaggeration of a mechanic's lien lacks merit and must be dismissed. According to the Defendant, the Plaintiffs failed to pay $29,852.07 for professional services provided by the Defendant pursuant to the contracts.

Defendant asserts that, based upon the Plaintiffs' non-payment of the outstanding fees, they filed a mechanic's lien on the property -- its statutory right pursuant to the Lien Law. Further, the Defendant argues that the Plaintiffs have failed to delineate acts that rises to the level of a "willful" exaggeration and that honest disagreements over contract interpretation or scope do not rise to that level.

Defendant also asserts that the Plaintiff never served a demand to foreclose on the lien -- thereby reserving the "exaggeration" defense. Defendant notes that the claims within the Verified Complaint consist of "untrue statements" such as the property is "unlivable," which the Defendant contends is belied by the Plaintiffs' own statement that they have been residing in the premises since January 20, 2024.

Eighth Cause of Action: Dismissal of the Mechanic's Lien. Defendant contends that the lien is procedurally sound. Specifically, the Defendant asserts that they filed their lien on September 19, 2023, and subsequently served the lien to the Plaintiffs on October 7, 2024. Additionally, the Defendant avers that -- during the pendency of the instant action on February 24, 2025 -- the Honorable Rachel Tanguay, J.S.C. extended the subject lien without rendering it void.

Punitive Damages and Attorneys' Fees. According to the Defendant, the Plaintiffs seek punitive damages in the "Wherefore" clause of the subject Complaint which are inapplicable to the instant action. Further, the Defendant asserts there are no allegations even suggesting wanton dishonesty and/or implying criminal indifference to civil obligations. Defendant also argues that there is no basis for the Plaintiff's claim for attorney's fees and costs since there is no entitlement for fees pursuant to the underlying agreements. Finally, the Defendant contends that any entitlement to attorneys' fees under the Lien Law are based solely on the Plaintiffs' entitlement of dismissal of the mechanics lien -- which Defendant asserts is meritless.

Plaintiff's Arguments in Opposition (Motion Seq. No. 1)

In response, Plaintiffs filed an untimely cross-motion seeking summary judgment on the second and third counterclaims raised in Defendant's answer and opposing Defendant's motion for partial summary judgment. Plaintiffs concede that their cross-motion was made more than sixty (60) days after they filed the Note of Issue but contend that the motion should nevertheless be considered since: (1) it is on nearly identical grounds as Defendant's motion; and (2) it is based on the same agreement and factual assertions.

They contend that the Defendant is not entitled to summary judgment, even though the Defendant's motion is seeking dismissal pursuant to Civil Practice Law and Rules § 3211 and not summary judgment. Plaintiffs argue that the Fifth Cause of Action is not duplicative of the breach of contract causes of action because it is based upon representations that are separate and distinct from the obligations under the parties' agreements. Specifically, the Plaintiffs assert that the Defendant made several material misrepresentations to deceive the Plaintiffs to enter into the subject agreements including that it had "70+ years residential and commercial architectural & interior design experience" and "30 years construction industry experience." Plaintiffs contend that the extent of Defendant's experience were false representations.

Next, the Plaintiffs concede the existence of the agreements between the parties but assert that their existence does not preclude the quasi-tort claims. Plaintiffs argue that not all their damages arise from the agreements. Rather, they claim that the Defendant engaged in misconduct that was independent of its contractual obligations and that the quai-tort claims should not be dismissed. According to Plaintiffs, whether their alleged injuries and damages arise exclusively from the agreements is a disputed material fact that precludes summary judgment.

Finally, Plaintiffs contend that Defendant's application for summary judgment as to the Seventh cause of action is based on conclusory assertions and "selective reliance on the record." According to the Plaintiffs, Defendant's argument asks the Court to resolve factual disputes and draw inferences in Defendant's favor, which is not permissible on a summary judgment motion.

Defendant's Reply Arguments (Motion Seq. No. 1)

At the outset, the Defendant notes that the Plaintiffs failed to oppose the Defendant's motion to the extent that it sought dismissal of punitive damages and attorneys' fees and costs. Defendant contends that they have satisfied their burden of demonstrating prima facie entitlement to dismissal of both claims. Similarly, Defendant argues that Plaintiffs have failed to oppose dismissal of the Eighth Cause of Action -- which sought dismissal of the lien on procedural grounds.

Moreover, Defendant argues that the Plaintiffs have failed to provide any justification for the causes of action sounding in negligence, unjust enrichment, quantum meruit and conversion. In response to Plaintiffs' statement that the "relevant issue" in this matter is whether all the damages arise from the subject agreements, the Defendant notes that the Plaintiff never plead an independent breach in the Complaint and improperly interposed the argument through the affirmation of counsel and without any admissible evidence. Specifically, Defendant asserts there is no citation to a prior pleading, deposition testimony or a project document.

Similarly, Defendant contends that the claim of fraudulent conduct is not plead with the required specificity. See Civil Practice Law and Rules § 3016(b). Defendant asserts that the Complaint does not identify any material misrepresentations. It states that the Defendant's years of experience in architecture and construction is not a fraudulent inducement and is supported by George Hodosh's testimony at his examination before trial (hereinafter EBT).

Finally, Defendant contends that Plaintiffs' opposition -- concerning the Seventh Cause of Action for willful exaggeration of a mechanic's lien -- is based upon the standard for a summary judgment motion rather than the standard for failure to state a cause of action. Defendant again argues that the Plaintiffs failed to pay the amount billed for professional services pursuant to the agreement and there are no facts within the agreement that demonstrate a deliberate action to exaggerate the lien amount or that the amount alleged is inaccurate.

Plaintiffs' Cross-Motion for Partial Summary Judgment Pursuant to Civil Practice Law and Rules § 3212 (Motion Seq. No. 2)

Plaintiffs' Arguments in Support

Plaintiffs concede that the existence of a valid and enforceable written contract governing a particular subject matter would ordinarily preclude quasi-contract relief for claims such as conversion and unjust enrichment. Similarly, Plaintiffs contend that the cause of action for account stated is also an alternative theory of liability to recover damages sustained because of a breach of contract claim. Plaintiff asserts that Defendant's counterclaim for breach of contract is identical to the prayer for relief set forth in the unjust enrichment and account stated counterclaims -- which are each based upon the parties' agreement.

Second, Plaintiffs argue that the Defendants have failed to establish their counterclaim for account stated since the claim presupposes mutual assent to the balance that Plaintiffs contend "indisputably never existed." They claim that they brought the instant action to contest Defendant's entitlement to payment for work that was allegedly performed pursuant to the contract and that Defendant's counterclaim for account stated indicates that the debt is in dispute. Therefore, Plaintiffs argue that the parties had no agreement, express or implied, as to the balance owed. Finally, Plaintiffs argue that the Defendant cannot establish a prima facie entitlement to judgment as a matter of law on the account stated cause of action since they submitted no evidence that the parties agreed as to the amount of balance due -- such as an invoice retained for an unreasonable period without objection.

Defendant's Opposition to Plaintiffs' Cross Motion

Defendant asserts that the Plaintiffs' cross-motion is untimely, as previously conceded by the Plaintiffs, since the Note of Issue was filed on November 6, 2025, and the deadline to file dispositive motions was January 5, 2026, sixty (60) days from the date of the Note of Issue. The Defendant contends that they filed a timely motion to dismiss pursuant to Civil Practice Law and Rules § 3211(a)(7) on January 5, 2026, and despite the known deadline -- Plaintiffs did not file their cross motion pursuant to Civil Practice Law and Rules § 3212 until February 5, 2026. Defendant submits that Plaintiffs' motion for summary judgment should be denied without consideration of the merits.

Defendant also argues that Plaintiffs' attempt to "piggyback" their timely motion is meritless as the two (2) motions are not made on "nearly identical grounds" since Defendant's motion seeks dismissal for failure to state a claim and the Plaintiffs' motion seeks partial summary judgment. Specifically, the Defendant asserts that the two (2) motions are not identical since they seek relief by different means that require different standards and different proof.

PLAINTIFFS' CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT PURSUANT TO CIVIL PRACTICE LAW AND RULES § 3212 (MOTION SEQ. NO. 2)

Plaintiffs' motion for partial summary judgment, by their own admission, was untimely, as it was filed beyond the deadline of sixty (60) days as set forth in the Court's Compliance Conference Order issued May 15, 204 by Judge Tanguay. See NYSCEF Doc. No. 26. However, Plaintiffs proffer that their untimely motion should be considered by the Court since it is filed on nearly identical grounds as the Defendant's timely motion to dismiss.

Civil Practice Law and Rules § 3212(a) provides that courts have "considerable discretion to fix a deadline for filing summary judgment motions . . . but . . . no such deadline [can] be set earlier than 30 days after filing the note of issue or . . . later than 120 days after the filing of the note of issue, except with leave of court on good cause shown." Brill v City of New York, 2 NY3d 68651 [2004]; See Wittenberg v Long Island Power Authority, 225 AD3d 730, 732 [2d Dept 2024]. The Brill Court held that "good cause" as used in Civil Practice Law and Rules § 3212 "requires a showing of good cause for the delay in making the motion — a satisfactory explanation for the untimeliness-rather than simply permitting meritorious, nonprejudicial filings, however tardy. Nonetheless, an untimely cross-motion for summary judgment can be considered by the court in a circumstance in which a timely motion was made on nearly identical grounds. See Sikorjak v City of New York, 168 AD3d 778, 780 [2d Dept 2019].

Here, it is undisputed that the Plaintiffs did not file their motion within the sixty (60) days set forth by Judge Tanguay in the Compliance Conference Order dated May 15, 2024. Further, Plaintiffs do not proffer a reason for the delay and instead argue that their motion should be considered because it raises identical grounds to the Defendant's timely motion. In any event, this Court finds that the Plaintiffs' cross-motion does not raise nearly identical issues as the Defendant's timely motion.

Specifically, Defendant's motion sought dismissal of several causes of action pursuant to Civil Practice Law and Rules § 3211(a)(7) based upon the Plaintiffs' failure to state causes of action while Plaintiffs' motion seeks summary judgment pursuant to Civil Practice Law and Rules § 3212 as to Defendant's cross claims for account stated and unjust enrichment. See Wittenberg v Long Island Power Authority, 225 AD3d at 732-733.

Plaintiffs' argument that the two (2) motions are on nearly identical grounds because they both address arguments of the availability of quasi-contract relief in light of the existence of a contract is meritless. Following Plaintiffs' logic, as asserted in their argument, any application would be nearly identical -- no matter how different the relief sought -- if the arguments relate tangentially to the underlying agreement/contract between the parties. This Court cannot countenance this broad interpretation of "nearly identical" as set forth in Sikorjak and again as recently reiterated by the Appellate Division, Second Department. See Rolle v JCDecaux Street Furniture New York LLC, 2026 NY Slip Op 02859, *2 [2d Dept May 6, 2026].

Therefore, the Court finds that Plaintiffs' cross-motion for partial summary judgment (Motion Seq. No. 2) is untimely -- without a good cause basis proffered for the delay. Thus, those branches of the cross-motion seeking partial summary judgment cannot be considered. Nonetheless, the Court will consider the arguments within the Plaintiffs' cross motion which are in opposition to Defendant's motion for dismissal.

DEFENDANT'S MOTION TO DISMISS PURSUANT TO CIVIL PRACTICE LAW AND RULES §§ 3211(a)(7) (MOTION SEQ. NO. 1)

Defendants have filed the instant Motion to Dismiss pursuant to Civil Practice Law and Rules §§ 3211(a)(7) seeking dismissal of the First, Third, Fourth, Fifth, Sixth, Seventh and Eighth Causes of action and the requests for punitive damages and attorney's fees. In support of their motion, Defendants have provided the agreements/contracts signed by the parties and entitled -- Architecture Agreement and Construction Management Agreement, the EBT transcript of Plaintiff KRIS LINDSAY, the mechanic's lien filed by Defendant against Plaintiffs and an affidavit of service as to the service of the mechanic's lien on Plaintiffs.

In opposition, Plaintiffs appear to have incorrectly believed that the Defendant's motion sought summary judgment instead of a motion to dismiss for failure to state a cause of action. See NYSCEF Doc. No. 60, p. 6. Further, it appears that the Plaintiffs have conflated the standards for a summary judgment motion and a motion to dismiss pursuant to Civil Practice Law and Rules § 3211 in their arguments as to the Eighth Cause of Action — Willful Exaggeration of Mechanic's Lien. See NYSCEF Doc. No.60, ¶ 27-28.

Civil Practice Law and Rules § 3211 (a)(7) provides that a party may move to dismiss an action on the ground that "the pleading fails to state a cause of action." "On a motion to dismiss pursuant to CPLR § 3211, the complaint is to be afforded a liberal construction" and the facts alleged are generally accepted as true and afforded every possible favorable inference. Benitez v. Bolla Operating LI Corp., 189 AD3d 970 (2d Dept 2020); Gorbatov v. Tsirelman, 155 AD3d 836 [2d Dept 2017]; See Rushaid v. Pictet & Cie, 28 NY3d 316 [2016]. Further, "[i]n reviewing a motion pursuant to CPLR § 3211(a)(7) to dismiss the complaint for failure to state a cause of action, the facts as alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court's function is to determine only whether the facts as alleged fit within any cognizable legal theory." Benitez v. Bolla Operating LI Corp., 189 AD3d at 970 quoting Mendelovitz v. Cohen, 37 AD3d 670, 671 [2d Dept 2007]; See Edelman v. Berman, 195 AD3d 995 [2d Dept 2021].

In determining a motion to dismiss pursuant to Civil Practice Law and Rules § 3211(a)(7), the Court should not consider whether a plaintiff can ultimately establish its allegations. See Kaufman v. Kaufman, 206 AD3d 805 [2d Dept 2022].

First Cause of Action — Negligence.

"It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated." Dormitory Authority v Samson Construction Co., 30 NY3d 704, 711 [2018] quoting Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]. Specifically, " 'a contracting party may be charged with a separate tort liability arising from a breach of a duty distinct from, or in addition to, the breach of contract.' " Sommer v Federal Signal Corp., 79 NY2d 540, 551 [1992] quoting North Shore Bottling Co v Schmidt & Sons, 22 NY2d 171, 179 [1968]. Further, "[a] tort may arise from the breach of a legal duty independent of the contract, but merely alleging that the breach of contract duty arose from a lack of due care will not transform a simple breach of contract into a tort." Id.

Here, the claims alleged by Plaintiffs arise from the agreements between the parties, an agreement for architecture services and an agreement for construction management. There is no dispute that the Defendant had a contractual duty to perform the work contemplated under the two (2) agreements with due care. Nothing plead by Plaintiffs within the First Cause of Action demonstrates that the Defendant had a legal duty independent of the contracts/agreements which are alleged to have been violated.

Plaintiff did not adequately allege that the Defendant violated a legal duty independent of the contract. Rather, the Plaintiff solely alleged that the work performed by Defendant under the contracts was performed in a less than competent manner, which sounds in breach of contract and not negligence. See Park Edge Condominiums, LLC v Midwood Lumber & Millwork, Inc., 109 AD3d 890 [2d Dept 2013]; See also Corrado v East End Pool & Hot Tub, Inc., 69 AD3d 900 [2d Dept 2010]; Staten Island New York CVS, Inc. v Gordon Retal Development, LLC, 57 AD3d 760 [2d Dept 2008]. As such, the First Cause of Action sounding in negligence is dismissed as duplicative of the cause of action for Breach of Contract.

Third Cause of Action - Unjust Enrichment

"[T[he theory of unjust enrichment lies as a quasi-contract claim. It is an obligation the law creates in the absence of an agreement." Port Auth. of NY & N.J. v Brooklyn Union Gas Co., 179 AD3d 1106, 1108 [2d Dept 2020]; See also Extech Building Materials, Inc. v J Companies, LLC, 2026 NY Slip Op 01770 [2d Dept March 25, 2026]. Further, "[a]n unjust enrichment claim is not available where it simply duplicates, or replaces, a conventional contract or tort claim." Corsello v Verizon NY, Inc., 18 NY3d 777, 790 [2012]. Specifically, " '[t]he existence of a valid and enforceable written contract governing a particular subject matter precludes recovery in quasi contract for events arising out of the same subject matter.' " Port Authority of New York and New Jersey v Brooklyn Union Gas Company, 179 AD3d at 1108 quoting Gargano v Morey, 165 AD3d 889, 892 [2d Dept 2018].

Here, the Plaintiff's Third Cause of Action alleging unjust enrichment is duplicative of the cause of action alleging breach of contract because the parties Architecture and Construction Management Agreements cover the instant dispute and the Complaint merely alleges that unjust enrichment resulted from the Defendant's breach of the agreements. As such, the Third Cause of Action for unjust enrichment is dismissed.

Fourth Cause of Action — Quantum Meruit

"To establish a quantum meruit claim, the plaintiff must show: (1) the performance of services in good faith, (2) the acceptance of services by the person or persons to whom they are rendered, (3) the expectation of compensation therefore, and (4) the reasonable value of the services rendered." Bardy v Bonnem, 239 AD3d 809, 812 [2d Dept 2025] quoting Whitfiled v Law Enforcement Empls. Benevolent Assn., 237 AD3d 1139, 1141 [2d Dept 2025]. "Where 'there is a bona fide dispute as to the existence of a contract or where the contract does not cover the dispute in issue, a plaintiff may proceed upon a theory of quantum meruit as well as contract, and will not be required to elect his or her remedies.' " JLO Development Corp. v Amalgamated Bank, 232 AD3d 705, 708 quoting Sforza Health Ins. Plan of Greater NY, Inc., 210 AD2d 214, 215 [2d Dept 1994]. Here, the Plaintiff alleges the existence of an agreement/contract between the parties and has not alleged that the agreement/contract does not cover the subject dispute. As such, the Fourth Cause of Action for quantum meruit is dismissed.

Fifth Cause of Action - Fraudulent Inducement

In general, "[a] cause of action premised upon fraud cannot lie where it is based on the same allegations as the breach of contract claim." Michael Davis Constr., Inc. v 129 Parsonage Lane, LLC, 194 AD3d 805, 807 [2d Dept 2021] quoting Heffez v L & G Gen. Constr., Inc., 56 AD3d 526, 527 [2d Dept 2008]; See Ramsay v Garland, 243 AD3d 935 [2d Dept 2025]. Specifically, "a cause of action alleging fraud is duplicative of a breach of contract cause of action if it is based on identical circumstances and alleges identical loss incurred for the breach as for the misrepresentation." Ramsay v Garland, 243 AD3d at 937. As to the pleading requirements, "[w]here a cause of action is based on fraud, 'the circumstances constituting the wrong shall be stated in detail.' " Air-Sea Packing Group, Inc v Applied Underwriters, Inc., 228 AD3d 20, 34 [2d Dept 2024] quoting Civil Practice Law and Rules § 3016[b].

Here, the Fifth Cause of Action for Fraudulent Inducement arose from the same facts and seeks the same damages as the Second Cause of Action for Breach of Contract. Since the same facts and damages were alleged for both the Fifth Cause of Action and the Second Cause of Action, the causes of action are duplicative. In any event, the Plaintiff's allegations of fraud are conclusory and fail to satisfy the requirements in Civil Practice Law and Rules § 3016[b] that the pleading specify the details constituting the wrong. As such, the Fifth Cause of Action must be dismissed.

Sixth Cause of Action — Conversion. Defendant asserts that this cause of action is unclear but believes it sounds in conversion and Plaintiff has not clarified or disputed that reading in their opposition. "While a cause of action alleging conversion cannot be predicated upon a mere breach of contract, the contracting party may also be held liable in tort where the conduct which constitutes a breach of contract also constitutes a breach of a duty distinct from, or independent of, the breach of contract." Connecticut New York Lighting Company v Manos Business Management Company, Inc., 171 AD3d 698, 700 [2d Dept 2019].

Here, the Complaint alleges a contractual relationship between the parties based upon the agreement and alleges that the Defendant accepted Plaintiffs' monies with the intent of not providing the services as set forth in the agreement. The balance of the cause of action alleges that the Defendant received funds and benefited from the funds despite refusing to perform pursuant to the agreement. This cause of action merely alleges a breach of contract and fails to allege a breach of duty that is distinct from or independent from the subject agreement. As such, the Sixth Cause of Action must be dismissed.

Seventh Cause of Action -Willful Exaggeration of a Lien

Lien Law § 39 states

In any action or proceeding to enforce a mechanic's lien upon a private or public improvement or in which the validity of the lien is an issue, if the court shall find that a lienor has willfully exaggerated the amount for which he claims a lien as stated in his notice of lien, his lien shall be declared to be void and no recovery shall be had thereon.

"It is well established that 'Inaccuracy in amount of lien, if no exaggeration is intended, does not void a mechanic's lien; willfulness also must be shown.' " Goodman v Del-Sa-Co Foods, Inc., 15 NY2d 191 [1965]. Based upon the statutory language "willful" behavior requires proof of an intentional, deliberate act. See Garrison v All Phase Structure Corp., 33 AD3d 661, 662 [2d Dept 2006]. "The burden is upon the opponent of the lien to show that the amounts set forth were 'intentionally and deliberately exaggerated.' " Id. quoting Fidelity N.Y v Kensington-Johnson Corp., 234 AD2d 263 [2d Dept 1996] quoting Perma Pave Contr. Corp v Paerdegat Boat & Racquet Club, 156 AD2d 550, 52 [2d Dept 1989]. Further, the statute does not contemplate "an exaggerated amount due to honest mistake." Goodman v Del-Sa-Co Foods, Inc., 15 NY2d at 195.

Here, the Plaintiffs allege willful conduct by the Defendant in the Seventh Cause of Action in conclusory fashion by inserting the word "willful" without describing any specific conduct. For example, the Plaintiff alleged that that the Defendant "did willfully exaggerate" the lien amount based upon the fact that they claimed amount that was unpaid knowing that the Plaintiffs had paid "far more" than the cost of the service performed by Defendant. There is no specific conduct alleged by Plaintiff and instead the essence of the statement is that the Plaintiffs believe they overpaid for the alleged poor services performed by the Defendant. Additionally, the cause of action is rife with allegations that the lien was willfully exaggerated based upon the Defendant's failure to complete the services or performing the services in a dangerous and a hazardous manner and rendered the home unlivable. Again, the Plaintiff is alleging they are being overcharged for services they consider were performed in a less than competent manner, not that the amount listed in the lien is exaggerated. As the Plaintiff has failed to allege an intentional or deliberate act of the Defendant that resulted in an exaggerated amount on the mechanic's lien issued by Defendant, the Seventh Cause of Action is dismissed.

Eighth Cause of Action - Dismissal of the Mechanic's Lien

The service requirements of a mechanics lien are set forth in Lien Law § 11:

Within five days before or thirty days after filing the notice of lien, the lienor shall serve a copy of such notice upon the owner, if a natural person, (a) by delivering the same to him personally, or if the owner cannot be found, to his agent or attorney, or (b) by leaving it at his last known place of residence in the city or town in which the real property or some part thereof is situated, with a person of suitable age and discretion, or (c) by registered or certified mail addressed to his last known place of residence, or (d) if such owner has no such residence in such city or town, or cannot be found, and he has no agent or attorney, by affixing a copy thereof conspicuously on such property between the hours of nine o'clock in the forenoon and four o'clock in the afternoon.

The failure to file proof of service of the notice of a mechanic's lien within thirty-five (35) days of the filing of the notice of lien, as required by Lien Law § 11 automatically terminates the lien. See Christopulos v Christopulos, 208 AD3d 749 [2d Dept 2022].

Here, the instant cause of action contends that the Defendant's mechanics lien on the subject property should be discharged because the Defendant's failed to file proof of service of the lien pursuant to Lien Law §§ 10, 11 and 19. Defendant has provided a copy of the mechanic's lien dated September 19, 2023 and an affidavit of service demonstrating that the lien was served personally on Plaintiffs on October 7, 2023 at 208 W Hudson Avenue, Englewood, New Jersey pursuant to Civil Practice Law and Rules § 308(2). Plaintiff provides no opposition or argument. Based upon the affidavit of service provided by Defendant, the Plaintiffs were timely served pursuant to Lien Law § 11 and the cause of action is dismissed.

Punitive Damages and Attorneys' Fees

"Punitive damages may be assessed where a defendant's actions evinced a high degree if moral culpability which manifested a conscious disregard for the rights of others or conduct so reckless as to amount to such disregard." Valenis v Park Avenue Operating Co., LLC, 169 AD3d 90 [2d Dept 2019]. The purpose of punitive damages is to "act as a deterrent to the offender 'and to serve as a warning to others" and they are "intended as punishment for gross misbehavior for the good of the public and . . . [are] 'a sort of hybrid between a display of ethical indignation and the imposition of a criminal fine.' " Home Ins. Co. v American Home Products Corp., 75 NY2d 196, 203 [1990]. Further, "[t]he nature of the conduct which justifies an award of punitive damages . . . is conduct having a high degree of moral culpability." Id. citing Walker v Sheldon, 10 NY2d 401, 40 [1961].

Here, punitive damages are not available since the Complaint alleges only "a private wrong, involving causes of action for breach of contract and ordinary fraud." Mom's Bagels of NY v Sig Greenbaum Inc., 164 A2d 820, 822-823 [1st Dept 1990]; See Stangel v Chen, 74 AD3d 100 [2d Dept 2010]. Further, the allegations within the Complaint do not allege that the Defendant's conduct was "willful and wanton," outrageously immoral, or criminal such that punitive damages are warranted. See Giblin v Murphy, 73 NY2d 769, 772[1988]. In addition, Plaintiffs' opposition provides no legal basis to support their application for punitive damages. As such, Plaintiffs' application for punitive damages is dismissed.

Turning to Plaintiffs' request for attorney's fees in the "wherefore" clause, the Court grants Defendant's application and dismisses the application. "New York follows the general rule that attorney's fees are incidents of litigation, and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute, or court rule." Wolf v Vestra SPV3, LLC, 233 AD3d 825, 826 [2d Dept 2024]; See Markham Gardens, L.P. v 511 9th, LLC, 143 AD3d 949 [2d Dept 2016]. Here, the agreements/contracts between the parties do not provide for recovery of attorney's fees. Further, the Plaintiff has failed to establish that there is a statute or court rule that provides for recovery of attorney's fees in a breach of contract action where the contract does not provide same. Therefore, Plaintiffs' application for attorney's fees is dismissed.

In arriving at this decision, the Court has reviewed, evaluated, and considered all the issues framed by these motion papers and the failure of the Court to specifically mention any particular issue in this Decision and Order does not mean that it has not been considered by the Court in light of the appropriate legal authority.

Accordingly, it is hereby

ORDERED that Defendant's Motion to Dismiss (Motion Seq. No. 1) is granted to the extent that the First, Third, Fourth, Fifth, Sixth, Seventh and Eighth Causes of Action, along with the requested relief of punitive damages and attorneys' fees are all dismissed pursuant to Civil Practice Law and Rules § 3211(a)(7); and it is further

ORDERED that Plaintiff's Motion for Summary Judgment (Motion Seq. No. 2) is denied based upon the foregoing; and it is further

ORDERED that this matter is scheduled for a pretrial conference on May 20, 2026.

The foregoing constitutes the Decision and Order as to Motion Seq. Nos. 1 and 2.

Dated: May 19, 2026

New City, New York

HON. JOHN P. COLLINS, JR., J.S.C.

John P. Collins, Jr., J.