Opinion
2021-03657 Index No. 602409/20
09-13-2023
Irwin R. KRASNOW, et al., respondents, v. Richard CATANIA, appellant.
Meltzer, Lippe, Goldstein & Breitstone, LLP, Mineola, NY (Richard M. Howard, Michael Masri, and Steven W. Livingston of counsel), for appellant. Salamon, Gruber, Blaymore & Strenger, P.C., Roslyn Heights, NY (Sanford Strenger of counsel), for respondents.
Meltzer, Lippe, Goldstein & Breitstone, LLP, Mineola, NY (Richard M. Howard, Michael Masri, and Steven W. Livingston of counsel), for appellant.
Salamon, Gruber, Blaymore & Strenger, P.C., Roslyn Heights, NY (Sanford Strenger of counsel), for respondents.
BETSY BARROS, J.P., JOSEPH J. MALTESE, BARRY E. WARHIT, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Nassau County (Steven M. Jaeger, J.), entered April 5, 2021. The order denied the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED the order is reversed, on the law, with costs, and the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint is granted.
In October 2018, the defendant listed certain real property for sale, and the plaintiff Irwin R. Krasnow expressed interest in purchasing the property. In November 2019, Krasnow and the defendant executed a letter of intent, outlining the terms and conditions to be incorporated into a formal purchase and sale agreement. In December 2019, the defendant informed Krasnow that he had negotiated a sale of the property with a third party.
In February 2020, Krasnow and his real estate broker, the plaintiff Area Real Estate Associates, Inc., commenced the instant action against the defendant, asserting causes of action to recover damages for breach of contract, "intentional, malicious and wrongful actions," "wrongful acts and infliction of emotional distress," and for an award of attorneys’ fees. The defendant moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. In an order entered April 5, 2021, the Supreme Court denied the defendant's motion. The defendant appeals, and we reverse.
"Under CPLR 3211(a)(1), a dismissal is warranted only if ‘the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law’ " ( Yan Ping Xu v. Van Zwienen, 212 A.D.3d 872, 874, 183 N.Y.S.3d 475, quoting Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ). "Thus, the defendant bears the burden of demonstrating that the proffered documentary evidence conclusively refutes the plaintiff's factual allegations" ( Giambrone v. Arnone, Lowth, Wilson, Leibowitz, Adriano & Greco, 197 A.D.3d 459, 461, 152 N.Y.S.3d 688 ). "To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable" ( Bath & Twenty, LLC v. Federal Sav. Bank, 198 A.D.3d 855, 855–856, 156 N.Y.S.3d 316 ).
Here, the defendant submitted the letter of intent which conclusively established that the parties did not enter into a binding contract, but instead had a mere agreement to agree (see DCR Mtge. VI Sub I, LLC v. Peoples United Fin., Inc., 148 A.D.3d 986, 988, 50 N.Y.S.3d 144 ; 2004 McDonald Ave. Realty, LLC v. 2004 McDonald Ave. Corp., 50 A.D.3d 1021, 1021, 858 N.Y.S.2d 203 ). The letter of intent expressly stated that the letter was not contractually binding and expressly anticipated the future preparation and execution of a contract. Accordingly, the Supreme Court should have granted dismissal of so much of the complaint as was predicated upon allegations of breach of contract pursuant to CPLR 3211(a)(1).
On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every possible favorable inference (see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). "Although the facts pleaded are presumed to be true and are to be accorded every favorable inference, bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration" ( Garendean Realty Owner, LLC v. Lang, 175 A.D.3d 653, 653, 107 N.Y.S.3d 416 [internal quotation marks omitted]).
The Supreme Court should have granted dismissal of the causes of action sounding in tort pursuant to CPLR 3211(a)(7). Here, the plaintiffs failed to allege sufficient facts to state recognized causes of action (see A.R. v. City of New York, 206 A.D.3d 768, 770, 170 N.Y.S.3d 180 ; Giambrone v. Arnone, Lowth, Wilson, Leibowitz, Adriano & Greco, 197 A.D.3d at 462–463, 152 N.Y.S.3d 688 ; Oceanview Assoc., LLC v. HLS Bldrs. Corp., 184 A.D.3d 843, 845, 126 N.Y.S.3d 755 ; Berland v. Chi, 142 A.D.3d 1121, 1123, 38 N.Y.S.3d 57 ).
Additionally, the Supreme Court should have granted dismissal of the cause of action seeking an award of attorneys’ fees pursuant to CPLR 3211(a)(7). Attorneys’ fees are not recoverable absent a specific contractual provision or statutory authority (see Chicago Tit. Ins. Co. v. LaPierre, 140 A.D.3d 821, 822, 33 N.Y.S.3d 397 ). Here, there was no binding contract between the parties and the plaintiffs did not allege a statutory right to recover attorneys’ fees.
The parties’ remaining contentions either are without merit or need not be reached in light of our determination.
Accordingly, we reverse the order and grant the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.
BARROS, J.P., MALTESE, WARHIT and TAYLOR, JJ., concur.