Opinion
2017–06119 Index No. 100918/15
07-25-2018
OCEAN GATE HOMEOWNERS ASSOCIATION, INC., respondent, v. T.W. FINNERTY PROPERTY MANAGEMENT, INC., appellant.
Lewis Brisbois Bisgaard & Smith LLP, New York, N.Y. (Steven R. Montgomery and Jonathan P. Sellers of counsel), for appellant. John Z. Marangos, Staten Island, NY, for Respondent.
Lewis Brisbois Bisgaard & Smith LLP, New York, N.Y. (Steven R. Montgomery and Jonathan P. Sellers of counsel), for appellant.
John Z. Marangos, Staten Island, NY, for Respondent.
MARK C. DILLON, J.P., SANDRA L. SGROI, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In an action to recover damages for breach of contract and negligence, the defendant appeals from an order of the Supreme Court, Richmond County (Desmond A. Green, J.), dated May 3, 2017. The order denied the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the second cause of action, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff is a homeowners' association that manages the common areas and business of a residential community located in Staten Island. The plaintiff allegedly entered into an agreement with the defendant pursuant to which the defendant would manage the affairs of the community.
The plaintiff commenced this action to recover damages for breach of contract and negligence. The plaintiff alleged that the defendant had breached its duty to pay certain real estate taxes on behalf of the residential community and to keep the plaintiff's corporate records current with the Secretary of State.
The defendant moved pursuant to CPLR 3211(a) to dismiss the complaint. The defendant argued that the second cause of action, alleging negligence, was duplicative of the first cause of action, alleging breach of contract, that both causes of action were untimely, and that documentary evidence conclusively established a defense as a matter of law. In the order appealed from, the Supreme Court denied the defendant's motion. The defendant appeals.
On a motion to dismiss pursuant to CPLR 3211(a), a court must "accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; see Kolchins v. Evolution Mkts., Inc., 31 N.Y.3d 100, 105–106, 73 N.Y.S.3d 519, 96 N.E.3d 784 ). A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint based on documentary evidence may be appropriately granted "only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( 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 ; see Carbone v. U.S. Bank N.A., 156 A.D.3d 678, 679, 67 N.Y.S.3d 57 ). The defendant bears the burden of demonstrating that the proffered evidence "conclusively refutes plaintiff's factual allegations" ( Kolchins v. Evolution Mkts., Inc., 31 N.Y.3d at 106, 73 N.Y.S.3d 519, 96 N.E.3d 784 ).
Here, contrary to the defendant's contention, it cannot be said that the documentary evidence it submitted in connection with its motion "conclusively refutes plaintiff's factual allegations" ( id. ; cf. Retty Fin., Inc. v. Morgan Stanley Dean Witter & Co., 293 A.D.2d 341, 341, 740 N.Y.S.2d 198 ). Accordingly, we agree with the Supreme Court's determination to deny that branch of the defendant's motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint.
"To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired" ( Stewart v. GDC Tower at Greystone, 138 A.D.3d 729, 729, 30 N.Y.S.3d 638 ; see Campone v. Panos, 142 A.D.3d 1126, 1127, 38 N.Y.S.3d 226 ). "If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period" ( Barry v. Cadman Towers, Inc., 136 A.D.3d 951, 952, 25 N.Y.S.3d 342 ; see Stewart v. GDC Tower at Greystone, 138 A.D.3d at 730, 30 N.Y.S.3d 638 ). Here, as the plaintiff correctly contends, the defendant failed to meet its prima facie burden of demonstrating "that the time within which to commence the action [had] expired" ( Stewart v. GDC Tower at Greystone, 138 A.D.3d at 729, 30 N.Y.S.3d 638 ). Accordingly, we agree with the Supreme Court's determination to deny that branch of the defendant's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.
However, the Supreme Court should have granted that branch of the defendant's motion which was to dismiss the second cause of action, which sought to recover damages for negligence. "[A] simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated" ( Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 ; see Dormitory Auth. of the State of N.Y. v. Samson Constr. Co., 30 N.Y.3d 704, 711, 70 N.Y.S.3d 893, 94 N.E.3d 456 ). "This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract" ( Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d at 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 ; see Board of Mgrs. of Beacon Tower Condominium v. 85 Adams St., LLC, 136 A.D.3d 680, 684, 25 N.Y.S.3d 233 ). "Merely charging a breach of a ‘duty of due care’, employing language familiar to tort law, does not, without more, transform a simple breach of contract into a tort claim" ( Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d at 390, 521 N.Y.S.2d 653, 516 N.E.2d 190 ; see Dormitory Auth. of the State of N.Y. v. Samson Constr. Co., 30 N.Y.3d at 711, 70 N.Y.S.3d 893, 94 N.E.3d 456 ). "[W]here [a] plaintiff is essentially seeking enforcement of the bargain, the action should proceed under a contract theory" ( Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 552, 583 N.Y.S.2d 957, 593 N.E.2d 1365 ; see Dormitory Auth. of the State of N.Y. v. Samson Constr. Co., 30 N.Y.3d at 711, 70 N.Y.S.3d 893, 94 N.E.3d 456 ).
Here, the complaint did not allege facts that would give rise to a duty owed to the plaintiff that is independent of the duty imposed by the parties' agreement. Accordingly, the Supreme Court should have granted that branch of the defendant's motion which was to dismiss the second cause of action, which sought to recover damages for negligence (see New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 319–320, 639 N.Y.S.2d 283, 662 N.E.2d 763 ; Board of Mgrs. of Beacon Tower Condominium v. 85 Adams St., LLC, 136 A.D.3d at 684, 25 N.Y.S.3d 233 ; see also Dormitory Auth. of the State of N.Y. v. Samson Constr. Co., 30 N.Y.3d 704, 70 N.Y.S.3d 893, 94 N.E.3d 456 ).
DILLON, J.P., SGROI, MILLER and VALERIE BRATHWAITE NELSON, JJ., concur.