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Supreme Court, Appellate Division, First Department, New York.

FJ VULIS, LLC, Plaintiff–Appellant, v. Anna VAL, et al., Defendants–Respondents.


Decided: November 15, 2018

Acosta, P.J., Friedman, Manzanet–Daniels, Webber, Singh, JJ. The Law Office of Alexander Paykin, P.C., New York (Alexander A. Paykin of counsel), for appellant. Law Offices of Victor A. Worms, New York (Victor A. Worms of counsel), for respondents.

Order, Supreme Court, New York County (Shlomo Hager, J.), entered December 21, 2017, which, to the extent appealed from, denied plaintiff's motion for summary judgment on the complaint and granted defendants' cross motion for summary judgment dismissing the fraud and breach of fiduciary duty causes of action, unanimously affirmed, with costs.

Plaintiff's contention that defendants' untimely cross motion for summary judgment precluded them from seeking any relief is without merit (see CPLR 3212[b];  see also e.g. Carnegie Hall Corp. v. City Univ. of N.Y., 286 A.D.2d 214, 215, 729 N.Y.S.2d 93 [1st Dept. 2001] ).  Plaintiff's argument that the doctrine of law of the case prevents this Court from finding that the fraud claim is duplicative of the contract claim is also without merit (People v. Evans, 94 N.Y.2d 499, 503 n 3, 706 N.Y.S.2d 678, 727 N.E.2d 1232 [2000] ).

The contract claim alleges that defendants agreed to refund 50% of a commission that defendant Anna Val (Ms. Val) earned as a real estate broker.  The fraud claim alleges that defendants misrepresented that they would refund 50% of the commission, and that this was a misrepresentation because defendants “had no intention[ ] of paying the agreed-upon refund.”  The fraud claim does not allege that defendants breached any duty to plaintiff other than the contractual duty but merely restates the contract claim in terms of fraud and misrepresentation.  It is therefore duplicative of the contract claim (see e.g. Gordon v. Dino De Laurentiis Corp., 141 A.D.2d 435, 436, 529 N.Y.S.2d 777 [1st Dept. 1988];  Tesoro Petroleum Corp. v. Holborn Oil Co., 108 A.D.2d 607, 484 N.Y.S.2d 834 [1st Dept. 1985], appeal dismissed 65 N.Y.2d 637, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [1985] ).  Moreover, the fraud claim seeks the same damages ($42,500) as the contract claim (see e.g. Tesoro, 108 A.D.2d at 607, 484 N.Y.S.2d 834).

Plaintiff—the buyer of a condominium unit—claims Ms. Val breached her fiduciary duty to it as its attorney by also acting as the seller's real estate broker.  However, the evidence in the record shows that Ms. Val acted as plaintiff's, not the seller's, broker.  Even if, arguendo, there were a triable issue of fact as to whether Ms. Val was the seller's broker, plaintiff failed to show that this conflict of interest caused it either $42,500 or $85,000 in damages (see Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 A.D.3d 1, 10–11, 865 N.Y.S.2d 14 [1st Dept. 2008];  Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 271–272, 780 N.Y.S.2d 593 [1st Dept. 2004] ).

In light of the above disposition, we need not reach plaintiff's arguments about the faithless servant doctrine.