Opinion
9800N Index 657550/17
07-02-2019
BML PROPERTIES LTD., Plaintiff–Respondent, v. CHINA CONSTRUCTION AMERICA INC., etc., et al., Defendants–Appellants, Does 1–10, et al., Defendants.
Squire Patton Boggs (US) LLP, New York (Mitchell R. Berger of counsel), for appellants. Morrison Cohen LLP, New York (Malcolm I. Lewin of counsel), for respondent.
Squire Patton Boggs (US) LLP, New York (Mitchell R. Berger of counsel), for appellants.
Morrison Cohen LLP, New York (Malcolm I. Lewin of counsel), for respondent.
Richter, J.P., Tom, Gesmer, Kern, Moulton, JJ.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered on or about January 24, 2019, which, to the extent appealed from as limited by the briefs, denied defendants' motion to compel arbitration, or, alternatively, to dismiss the causes of action for fraud, unanimously affirmed, without costs.
The court correctly denied the branch of defendants' motion seeking to compel arbitration because plaintiff was not a party to the agreement containing the arbitration clause and the claims at issue were, by separate agreement, required to be litigated in New York (see Matter of Cammarata v. InfoExchange, Inc. , 122 A.D.3d 459, 460, 996 N.Y.S.2d 266 [1st Dept. 2014] ; Oxbow Calcining USA Inc. v. American Indus. Partners , 96 A.D.3d 646, 649–650, 948 N.Y.S.2d 24 [1st Dept. 2012] ).
Plaintiff adequately stated a claim for fraud, by asserting justifiable reliance upon assurances, alleged to have been false when made, regarding the project's status, and the workforce and resources available to meet the deadline for completion of the project, which were collateral to, and not duplicative of plaintiff's claims for breach of contract (see Deerfield Communications Corp. v. Chesebrough–Ponds, Inc. , 68 N.Y.2d 954, 956, 510 N.Y.S.2d 88, 502 N.E.2d 1003 [1986] ; MBIA Ins. Corp. v. Countrywide Home Loans, Inc. , 87 A.D.3d 287, 294, 928 N.Y.S.2d 229 [1st Dept. 2011] ; GoSmile, Inc. v. Levine , 81 A.D.3d 77, 81, 915 N.Y.S.2d 521 [1st Dept. 2010], lv dismissed 17 N.Y.3d 782, 929 N.Y.S.2d 83, 952 N.E.2d 1077 [2011] ).