Summary
In Lovisa Contr. Co. v. Metropolitan Transportation Authority, 198 A.D.2d 333 (2d Dept. 1993), the court dismissed plaintiffs complaint because it "contained little more than bare legal conclusions and factual claims which are either inherently incredible or flatly contradicted by documentary evidence."
Summary of this case from Rao's City View, LLC v. Soffes Wood, Inc.Opinion
November 15, 1993
Appeal from the Supreme Court, Kings County (Bernstein, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
A complaint is subject to dismissal pursuant to CPLR 3211 (a) (7) when the pleading is comprised of little more than bare legal conclusions and factual claims which are either inherently incredible or flatly contradicted by documentary evidence (see, Gertler v Goodgold, 66 N.Y.2d 946, affg 107 A.D.2d 481; Lejkowski v Petrou, 178 A.D.2d 465; SRW Assocs. v Bellport Beach Prop. Owners, 129 A.D.2d 328). Upon a review of the record we conclude that the plaintiff's essential claims against the defendants Chemical Bank and Chemical Securities, Inc., are "flatly contradicted" by documentary evidence.
Under Article 5.02 of the construction contract between the plaintiff contractor and the defendants Metropolitan Transportation Authority and the New York City Transit Authority (hereinafter the MTA), the MTA was entitled to retain 5% of funds due to the plaintiff to ensure satisfactory performance of that contract. Article 5.04 enabled the plaintiff to draw upon these funds by purchasing and depositing certain approved bonds with the MTA as substitute security for the cash, in accord with General Municipal Law § 106. Article 5.04 (e) and Article 5.05 gave the MTA the right to sell the bonds upon a default causing loss. The bonds were purchased and deposited into a special MTA account established at Chemical Bank. Under the written contract between the MTA and Chemical Bank and Chemical Securities, Inc. (hereinafter Chemical), the MTA was the sole party for whose benefit the securities were to be kept and managed by Chemical, and the sole party authorized to instruct Chemical to take action with regard to these securities, which included selling them. It is undisputed that the MTA declared a default and ordered Chemical to sell the bonds deposited by the plaintiff and to turn over the proceeds to the MTA.
The crux of the plaintiff's complaint is that Chemical acted wrongfully in obeying the MTA instruction in the face of plaintiff's notification to Chemical objecting to the sale of the bonds. However, under the MTA contract with the plaintiff and the MTA contract with Chemical there simply was no ground upon which the plaintiff could ask Chemical to not carry out the MTA order. Chemical cannot be liable for obeying an instruction from MTA. Accordingly, based upon documentary evidence, we conclude that the Supreme Court correctly dismissed the complaint insofar as asserted against Chemical (CPLR 3211 [a] [7]; Lejkowski v Petrou, 178 A.D.2d 465, supra). Rosenblatt, J.P., Ritter, Copertino and Pizzuto, JJ., concur.