Opinion
0643/09
10-26-2011
James I. Moore, Jr. and PEERLESS INSURANCE/ EXCELSIOR INSURANCE COMPANY a/s/o JAMES MOORE, JR., Plaintiffs, v. Nuremore Construction, Inc., LEO LACKEN, individually, and MARK FLANAGAN, individually, Defendants.
ANTHONY R. MOLE, ESQ. HERODES & MOLE, P.C. Attorneys for Plaintiff JAMES I. MOORE, JR. MARK S. LABE, ESQ. HARRIS, KING & FODERA, ESQS. Attorneys for Plaintiff PEERLESS INSURANCE/EXCELSIOR INSURANCE COMPANY. CHRISTOPHER R. INVIDIATA, ESQ. MORRIS, DUFFY, ALONSO & FALEY, ESQS. Attorneys for Defendants NUREMORE CONSTRUCTION, INC., LEO LACKEN, individually, and MARK FLANAGAN, individually.
ANTHONY R. MOLE, ESQ. HERODES & MOLE, P.C. Attorneys for Plaintiff JAMES I. MOORE, JR.
MARK S. LABE, ESQ. HARRIS, KING & FODERA, ESQS. Attorneys for Plaintiff PEERLESS INSURANCE/EXCELSIOR INSURANCE COMPANY.
CHRISTOPHER R. INVIDIATA, ESQ. MORRIS, DUFFY, ALONSO & FALEY, ESQS. Attorneys for Defendants NUREMORE CONSTRUCTION, INC., LEO LACKEN, individually, and MARK FLANAGAN, individually.
James D. Pagones, J.
Defendants Nuremore Construction, Inc., Leo Lacken and Mark Flanagan move for an order pursuant to CPLR §§3211(a)(5) and (7) dismissing plaintiffs James I. Moore, Jr. and Peerless Insurance/Excelsior Insurance Company a/s/o James Moore, Jr.'s ("Peerless") respective complaints. Prior to the return date of the defendants' application, the action between plaintiff Moore and the defendants was settled. Therefore, the court will not address such portions of the defendants' motion as related to relief requested against plaintiff Moore. Plaintiff Peerless opposes the defendants' application and cross-moves for an order striking the defendants' statute of limitation defense pursuant to CPLR §3211(b). For the reasons that follow, it is ordered that the defendants' motion is granted in part to the extent that plaintiff Peerless' first and second causes of action are dismissed. It is further ordered that plaintiff Peerless' cross-motion is denied in its entirety.
This action arises as a result of a fire on November 23, 2005, which heavily damaged a premises located at 60 Moore Road, Hopewell Junction, New York and owned by plaintiff Moore. Plaintiff Peerless issued an insurance policy for the subject premises and paid plaintiff Moore $400,000.00, pursuant to the limits set forth in the insurance policy, as a result of the loss sustained by the fire. Subsequently, on or about November 6, 2008, plaintiff Moore commenced an action against the defendants to recover for additional alleged loses he sustained from the fire. Specifically, plaintiff Moore alleged he entered into a contract with the defendants to perform certain renovations to the subject premises and that the defendants caused the fire during the course of their renovation work. Plaintiff Moore also alleged causes of action against the defendants for breach of warranty, negligence and respondeat superior, all in relation to renovation work allegedly performed by the defendants. Plaintiff Moore's complaint does not make any specific monetary demand for damages, but instead states that he requests "damages in an amount to be determined at trial".
Thereafter, on or about January 20, 2009, plaintiff Peerless, as subrogor of plaintiff Moore, commenced an action against the defendants alleging causes of action for negligence, breach of contract, breach of warranty and joint and several liability. Plaintiff Peerless' ad damnum clause requests damages in the amount of $400,000.00.
Pursuant to the defendants' motion, the Moore action and the Peerless action were consolidated under the Peerless index number, pursuant to CPLR §602.
It is well settled that on any motion pursuant to CPLR Rule 3211, the court "must take the allegations (of the complaint) as true and resolve all inferences which reasonably flow therefrom in favor of the pleader." (Cron v. Hargro Fabrics, Inc., 91 NY2d 362, 366 [1998].) On a motion to dismiss a cause of action pursuant to CPLR Rule 3211(a)(7) on the ground that the plaintiffs have failed to state a cause of action, the court must liberally construe the complaint and accept all facts as alleged therein to be true, accord the plaintiffs the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. (Fishberger v. Voss, 51 AD3d 627 [2nd Dept. 2008].) Courts follow the general rule that "pleadings should be liberally construed and a complaint should not be dismissed for failure to state a cause of action when a cause can be discerned in the facts alleged, no matter how poorly those facts are stated." (M. Sobol, Inc. v. Goldman, 259 AD2d 526 [2nd Dept. 1999].)
The defendants initially assert that plaintiff Peerless' breach of warranty claim should be dismissed because New York does not recognize a cause of action for breach of warranty for the performance of services. (See, Town of Poughkeepsie v. Espie, 41 AD3d 701 [2nd Dept. 2007].) Plaintiff Peerless offers no opposition to the defendants' request. Therefore, it is ordered that the defendants' motion to dismiss plaintiff Peerless' breach of warranty cause of action is granted.
The defendants also contend plaintiff Peerless' negligence cause of action must be dismissed because the statute of limitations expired prior to commencement of the action.
The defendants further advocate for the dismissal of the negligence claim because it is duplicative of Peerless' breach of contract cause of action. Plaintiff Peerless does not dispute that the statute of limitations began to accrue on November 23, 2008, the date of the fire. Therefore, a cause of action to recover damages for injury to property must be commenced within three years from November 23, 2008. (CPLR §214[4].) Plaintiff Peerless' complaint was not filed until approximately two months after the statute of limitations elapsed and is therefore time-barred.
In response, plaintiff Peerless asserts three arguments in support of the denial of the defendants' application: (1) the defendants' statute of limitation defense was implicitly waived when the actions were consolidated; (2) the defendants should be estopped from raising the statute of limitations defense; and (3) the relation-back doctrine precludes the dismissal of its negligence cause of action based upon statute of limitations grounds.
The plaintiff has failed to demonstrate any support for its contention that consolidation implicitly waived the defendants' statute of limitations defense and the court declines to find that the merger of the two actions forfeited any of the defendants' affirmative defenses. The court also declines to find that the defendants should be equitably estopped from asserting the affirmative defense of statute of limitation based either upon their alleged delay in filing the instant motion or their request for consolidation. Plaintiff Peerless is unable to point to any relevant case law supporting its contention. Moreover, plaintiff Peerless acknowledges the defendants did not make any specific misrepresentations upon which they relied to their detriment. (See, Zumpano v. Quinn, 6 NY3d 666 [2006].) Under these circumstances, there is no basis for the court to determine that the defendants' should be equitably estopped from asserting their statute of limitations defense.
Plaintiff Peerless' remaining argument against the dismissal of its negligence cause of action based upon the expiration of the statute of limitations requests that the court invoke the relation-back doctrine. Generally, "the relation back doctrine allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a codefendant for Statute of Limitations purposes where the two defendants are united in interest'". (Buran v. Coupal, 87 NY2d 173 [1995].) Plaintiff Peerless advocates for the expansion of the doctrine to permit its negligence cause of action, which is time barred, to relate back to plaintiff Moore's negligence cause of action, which was timely but asserted in a separate action later consolidated with the within matter. The position asserted by plaintiff Peerless would significantly expand the relation back doctrine and would serve as a means by which a new plaintiff could revive an otherwise time-barred claim. Applying the relation back doctrine in such a manner would distort its meaning and purpose. (See, Insur. Co. of North America v. Hellmer, 212 AD2d 665 [2nd Dept. 1995], quoting Krellenstein v. Fieldcrest Mills, 123 Misc 2d 783, 784-785). Therefore, it is ordered that the defendants' motion to dismiss plaintiff Peerless' negligence cause of action is granted and plaintiff Peerless' cross-motion to dismiss the defendants' statute of limitations affirmative defense is denied. In light of the foregoing, the defendants' motion to dismiss the negligence cause of action as duplicative is denied as academic.
Lastly, the defendants seek dismissal of plaintiff Peerless' cause of action alleging a breach of contract. Plaintiff Peerless' complaint alleges that on or about May 2005, the defendants and Moore entered into a contract for the renovation of the subject premises, that the defendants breached the contract, and that the defective work performed by the defendants directly resulted in the fire which destroyed the subject premises. Taking the allegations of the complaint as true and resolving all inferences which reasonably flow therefrom in favor of plaintiff Peerless, the court cannot determine that the complaint fails to allege a cause of action for breach of contract. Therefore, it is ordered that the defendants' motion to dismiss plaintiff Peerless' cause of action for breach of contract is denied.
Accordingly, it is ordered that the defendants' motion is granted in part to the extent that plaintiff Peerless' first and second causes of action are dismissed. It is further ordered that plaintiff Peerless' cross-motion is denied in its entirety.
The foregoing constitutes the decision and order of the Court.
Dated:Poughkeepsie, New York
October 26, 2011
ENTER
HON. JAMES D. PAGONES, A.J.S.C.