Opinion
2014-03396, Index No. 19491/10.
04-06-2016
ANTHONY TRANCHINA GENERAL CONTRACTING CORP., appellant, v. GRECO BROS. READY MIX CONCRETE CO., INC., respondent.
Holihan & Associates, P.C., Richmond Hill, N.Y. (Stephen Holihan of counsel), for appellant. Spellman Rice Schure Gibbons McDonough Polizzi & Truncale, Garden City, N.Y. (Kevin P. McDonough and Matthew C. Schlesinger of counsel), for respondent.
Holihan & Associates, P.C., Richmond Hill, N.Y. (Stephen Holihan of counsel), for appellant. Spellman Rice Schure Gibbons McDonough Polizzi & Truncale, Garden City, N.Y. (Kevin P. McDonough and Matthew C. Schlesinger of counsel), for respondent.
JOHN M. LEVENTHAL, J.P., SANDRA L. SGROI, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
In an action, inter alia, to recover damages for breach of contract, fraud, and a violation of General Business Law § 349, the plaintiff appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Queens County (Taylor, J.), dated November 22, 2013, as granted those branches of the defendant's motion which were for summary judgment dismissing, as time-barred, so much of the second cause of action as sought to recover damages for conduct allegedly committed prior to August 2, 2009, and for summary judgment dismissing the fourth cause of action.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's motion which was for summary judgment dismissing, as time-barred, so much of the second cause of action as sought to recover damages for conduct allegedly committed prior to August 2, 2009, and substituting therefore a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
On August 2, 2010, the plaintiff commenced this action, inter alia, to recover damages for breach of contract, fraud, and a violation of General Business Law § 349, alleging that it entered into a series of contracts with the defendant between 2002 and 2010, for the purchase of concrete. The plaintiff claimed that the defendant supplied concrete that did not meet the specifications the plaintiff had ordered and that, as a result, the sidewalks and driveways it built for approximately 60 clients required replacement. The plaintiff further alleged that it had started replacing the concrete at its own expense. As pertinent here, the second cause of action alleged fraud and the fourth cause of action alleged a violation of General Business Law § 349. In the order appealed from, the Supreme Court, among other things, granted those branches of the defendant's motion which were for summary judgment dismissing, as time-barred, so much of the second cause of action as sought to recover damages for conduct allegedly committed prior to August 2, 2009, and for summary judgment dismissing the fourth cause of action.
The Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the fourth cause of action, alleging a violation of General Business Law § 349. The defendant established, prima facie, that the cause of action did not involve consumer-oriented deceptive practices, but was based on a private contract that is unique to the parties (see New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 320, 639 N.Y.S.2d 283, 662 N.E.2d 763 ; Caterpillar Ins. Co. v. Metro Constr. Equities, 130 A.D.3d 856, 859, 14 N.Y.S.3d 128 ; Biancone v. Bossi, 24 A.D.3d 582, 583, 806 N.Y.S.2d 694 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Biancone v. Bossi, 24 A.D.3d at 583, 806 N.Y.S.2d 694 ).
The Supreme Court, however, erred in granting that branch of the defendant's motion which was for summary judgment dismissing, as time-barred, so much of the second cause of action as sought to recover damages for conduct allegedly committed prior to August 2, 2009. Contrary to the defendant's contention, the second cause of action stated a cause of action to recover damages for fraud, not for an intentional tort. The defendant thus failed to demonstrate its prima facie entitlement to judgment as a matter of law on this issue, as its arguments were based on the one-year statute of limitations for intentional torts (see CPLR 215[3] ), not the longer limitations period applicable to fraud (see CPLR 213[8] ). That branch of its motion should therefore have been denied without regard to the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). The defendant's contention that the cause of action alleging fraud is duplicative of the cause of action alleging breach of contract is not properly before us since the defendant did not move to dismiss the fraud cause of action on this ground.