Opinion
No. 500494/2014.
11-07-2014
Lewis SAUL,, Plaintiff, v. Eric CAHAN and E–Unit, LLC, Defendants/Counter–Claimants.
Edward Coleman, Esq., Lewis Saul & Associates, P.C., New York, for Plaintiff. Lauren Lepore, Esq., New York, Christopher B. Spuches, Esq., Ehrenstein Charbonneau Calderin, Miami, FL, for Defendants.
Edward Coleman, Esq., Lewis Saul & Associates, P.C., New York, for Plaintiff.
Lauren Lepore, Esq., New York, Christopher B. Spuches, Esq., Ehrenstein Charbonneau Calderin, Miami, FL, for Defendants.
Opinion
CAROLYN E. DEMAREST, J.
In this action by plaintiff Lewis Saul (plaintiff) against defendants Eric Cahan (defendant) and E–Unit, LLC (E–Unit) seeking to recover damages in connection with defendant acting as an art advisor, defendant moves, under motion sequence number four, for an order, pursuant to CPLR 3211(a)(5) and (7), dismissing plaintiff's First Amended Complaint and Demand for Jury Trial, dated April 17, 2014.
Although E–Unit is named as a defendant in this action, plaintiff's amended complaint does not actually allege any claim as against it.
BACKGROUND
In late May 2013, plaintiff, an attorney and business owner, met defendant at a tennis facility where he was paired up to play tennis with him, and, after they had played tennis together on several occasions, defendant allegedly told plaintiff that he had a successful career as both an artist and an art seller and buyer. According to plaintiff, defendant claimed that he had recently sold a piece of art by an emerging artist for approximately $1,400,000 that he had purchased just a year and a half before for approximately $40,000, and that he had also sold art works by another emerging artist at a price of five to ten times greater than he had paid for them approximately one year before. Plaintiff alleges that defendant claimed to be a successful artist and to have recently sold six of his own art works to the computer company, Apple. Plaintiff asserts that, at that time, he had never purchased any significant piece of art, but had only purchased a handful of small prints valued at less than $1,500 and two sculptures made by a close friend.
At some point, defendant allegedly suggested to plaintiff that he act as his art advisor, claiming that he could explain to plaintiff how the contemporary art world operates and could counsel him on what artists and art works would be good investment opportunities for him as an art collector. Plaintiff claims that defendant informed him that the world of high-priced contemporary art is a small and insulated community and that the most valuable works are those considered to be primary works, i.e., works sold for the first time, typically by art galleries representing an artist and selling the artist's works at art shows, which are highly coveted by galleries and art collectors, and are often worth multiple times the price paid when the work is later offered for sale on the secondary art market. Plaintiff alleges that defendant told him that these primary works are only sold by art galleries to their best or most prestigious customers after they have built a trusted relationship by spending a large amount of money on other art works offered by them. Plaintiff asserts that defendant further informed him that he could eventually be offered the opportunity to obtain primary works if he purchased a large number of other art works from art galleries and other sellers, and that defendant's expertise and advice as an art advisor were necessary to select works of art that would be good investment opportunities and to assist him in gaining access to primary works through his claimed relationships with art galleries and sellers.
Plaintiff claims that he entered into an oral agreement, in which defendant would act as his art advisor by selecting what works of art would be good investments for him, and, in return, he would pay defendant a consulting fee or commission equal to 10% of the price that galleries and other sellers charged for the recommended art works that plaintiff actually purchased through defendant's efforts. Plaintiff alleges that, pursuant to this agreement, he was to have the right of first opportunity or “first crack” to purchase all art works that defendant could obtain, he would be defendant's only art advisory client at the time, and that, in order that defendant not purchase the best works for himself, defendant would refrain from purchasing any art works for himself without first offering them to him. Plaintiff further alleges that this agreement could be terminated by either of them at will.
Thereafter, over the course of approximately four months, plaintiff purchased art works through defendant, spending up to 1.3 million dollars on these works, for which he paid defendant 10% consulting fees totaling $110,000 to $130,000. Plaintiff alleges that after several months with defendant acting as his art advisor and making purchases on his behalf, he started to become concerned when defendant told him that he could not inform art galleries that he was making art purchases for him because the galleries would not sell to him, which was untrue. Plaintiff claims to have told defendant to inform galleries that he was the true purchaser of these art works and that defendant falsely claimed that he would do so.
Plaintiff also alleges that he purchased art work from an artist, Peter Demos (Demos), upon defendant's representation that he could obtain Demos' works at “gallery prices,” typically half the price that an art work would sell for at retail prices at a gallery or art show, but that he later discovered art works by Demos similar to those he had purchased selling for roughly the same prices that he had paid. Plaintiff claims that since defendant had misrepresented to him that he had helped obtain Demos' art works at half the cost the works would be sold for at an art show, defendant agreed not to take commissions on the works purchased from Demos. Plaintiff claims, however, that he grew increasingly suspicious and concerned by defendant's actions, and believed that defendant was primarily concerned with collecting his advisory fees, as opposed to acting in his best interests. Plaintiff alleges many ways in which defendant breached their agreement and committed many tortious acts during their relationship. On or about December 5, 2013, after securing possession of all his purchased works from defendant, plaintiff terminated the alleged agreement.
On January 22, 2014, plaintiff brought this action against defendant and E–Unit, which is the limited liability through which defendant does business, by filing a summons and complaint. On March 14, 2014, defendant and E–Unit served an answer, which contains affirmative defenses, including the statute of frauds, and interposes counterclaims. On April 17, 2014, plaintiff e-filed his first amended complaint.
Defendant has not yet interposed an answer to plaintiff's amended complaint.
Plaintiff's amended complaint alleges nine causes of action against defendant, including a first cause of action for breach of fiduciary duty, a second cause of action for fraud, a third cause of action for breach of contract, a fourth cause of action for negligence, a fifth cause of action for gross negligence, a sixth cause of action under General Business Law § 349 for deceptive acts and practices, a seventh cause of action for negligent misrepresentation, an eighth cause of action for unjust enrichment, and a ninth cause of action for an accounting.
The allegations which form the basis of each of these causes of action are that defendant breached his alleged contractual and fiduciary duties to plaintiff by: (1) misrepresenting the actual prices of art works to plaintiff, (2) failing to negotiate the best possible prices for art works on plaintiff's behalf, (3) recommending that plaintiff buy art works that have little or no investment value, (4) charging plaintiff more for art works that he purchased on plaintiff's behalf than the price that the gallery actually charged him for those works, (5) basing his 10% commission on the allegedly inflated prices that he claimed were the purchase prices for art works, (6) misrepresenting to gallery owners and other sellers that third parties were the true purchasers of art works when defendant was, in fact, purchasing those works on plaintiff's behalf as his art advisor and purchasing agent, (7) benefitting from holding himself out to gallery owners and other sellers as the true purchaser by making purchases, using plaintiff's funds, so as to bolster his own image as an art buyer and obtain the opportunity to purchase primary works that should have been offered to plaintiff, in violation of the right of first opportunity allegedly promised to plaintiff to purchase art works offered for sale, (8) misrepresenting to the public that certain works of art that plaintiff paid to purchase were actually owned by defendant, thereby diminishing plaintiff's standing as an art buyer and collector, while promoting defendant's own status, (9) failing to provide adequate invoices or providing invoices that contained incorrect information, thereby preventing him from being able to prove provenance for future sale, (10) failing to deliver certain works of art, or delivering them within New York rather than at plaintiff's Texas address, and charging plaintiff sales tax which he was not authorized to collect, and (11) misrepresenting his expertise and knowledge of the art world. Plaintiff seeks compensatory damages and punitive damages. On May 21, 2014, defendant e-filed the instant motion to dismiss plaintiff's amended complaint.
This list is taken from paragraph 223 of the Amended Complaint alleging breach of fiduciary duty.
DISCUSSION
Defendant seeks to dismiss plaintiff's amended complaint pursuant to CPLR 3211(a)(7), contending that it fails to state any viable cause of action. “On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible [favorable] inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Breytman v. Olinville Realty, LLC, 54 AD3d 703, 703–704 [2d Dept 2008], lv dismissed 12 NY3d 878 [2009] ; see also EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005] ; Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414 [2001] ). “In determining whether a complaint is sufficient to withstand a motion pursuant to CPLR 3211(a)(7), the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail' “ (Ruffino v. New York City Tr. Auth., 55 AD3d 817, 818 [2d Dept 2008], quoting Morris v. Morris, 306 A.D.2d 449, 451 [2d Dept 2003] ). However, “bare legal conclusions are not entitled to the benefit of the presumption of truth and are not accorded every favorable inference” (id. ). Dismissal of the complaint pursuant to CPLR 3211(a)(7) “will be warranted ... in those situations in which it is conclusively established that there is no cause of action” (Town of N. Hempstead v. Sea Crest Constr. Corp., 119 A.D.2d 744, 746 [2d Dept 1986] ). “Whether the plaintiff can ultimately establish the allegations is not part of the calculus' “ (Aberbach v. Biomedical Tissue Services, Ltd., 48 AD3d 716, 717–18 [2d Dept 2008], quoting EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d at 19).
The unverified First Amended Complaint recites a rambling litany of missed opportunities and other grievances against defendant who is alleged to have “act[ed] as art advisor and purchasing agent in his role as Plaintiff's fiduciary” (Complaint ¶ 152), in exchange for a 10% commission on any purchases by plaintiff. These allegations, including claims of fraud and misrepresentation regarding individual purchases, as well as defendant's failure to acknowledge plaintiff as the purchaser when dealing with third parties, are largely speculative and lack the particularity required to state an actionable claim, however, the essence of the relationship, acknowledged by defendant in e-mails, was that defendant would use his superior knowledge of, and contacts in, the art world, to advise plaintiff, and, using funds supplied by plaintiff, secure for him art works of potential increasing value for resale at substantial profit to plaintiff. Taking these allegations to be true, as the Court must upon this motion (see Held v. Kaufman, 91 N.Y.2d 425, 432 [1998] ), a cause of action for breach of contract, as so limited, has been stated, although the contract as a whole is unenforceable. Plaintiff's claims of fraud and negligent misrepresentation, sounding in a theory of a faithless servant in defendant's diverting to himself opportunities that plaintiff alleges belonged to himself, do not state a cause of action as defendant had no independent duty to plaintiff outside the alleged oral contract.
Plaintiff's first cause of action for breach of fiduciary duty cannot, be sustained since there was no fiduciary relationship between plaintiff and defendant. Plaintiff argues that a fiduciary relationship existed because he was not familiar with, and had no experience in, the high priced contemporary art market he sought to engage in and placed his trust and confidence in defendant's claimed expertise and knowledge. But it is settled that “ [a]llegations of superior knowledge or expertise in the art field are per se insufficient to establish the existence of a fiduciary relationship' “ (Mandarin Trading Ltd. v. Wildenstein, 17 Misc.3d 1118[A], *4 [Sup Ct, N.Y. County 2007], affd 65 AD3d 448 [1st Dept 2009], affd 16 NY3d 173 [2011], quoting Granat v. Center Art Galleries–Hawaii, Inc., 1993 WL 403977, *6 [SD N.Y. Oct. 6, 1993], citing Mechigian v. Art Capital Corp., 612 F Supp 1421, 1431 [SD N.Y.1985] [mere expertise in a particular field does not create fiduciary relations between the parties] ). Moreover, the complaint is replete with representations of occasions in which plaintiff, independent of defendant, made significant purchases of art works (see First Amended Complaint ¶ 85–106; ¶ 182). Thus, the relationship alleged lacks the requisite level of control and trust or confidence between plaintiff and defendant necessary to give rise to a fiduciary obligation. The entire relationship between plaintiff and defendant evolved from a chance pairing for tennis a mere seven months (late May 2013) before it was terminated by plaintiff in December 2013. Although defendant may have been successful in persuading plaintiff to purchase works that he offered in lieu of other alternatives, as alleged, the allegations are insufficient to establish that defendant assumed de facto control and dominance over plaintiff as required to create a fiduciary duty (see Marmelstein v. Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 11 NY3d 15, 21 [2008] ). Dismissal of plaintiff's first cause of action must, therefore, be granted (see CPLR 3211[a][7] ).
Plaintiff's third cause of action for breach of contract alleges that he formed a contractual relationship with defendant, whereby defendant was to provide him with advice as to the art works he should purchase in exchange for a 10% commission, and that he would be given the right of first opportunity to purchase those art works that were offered for sale to defendant by art galleries and other sellers. He further alleges that defendant breached his contractual obligation by basing his 10% commission on inflated purchase prices, rather than the actual prices paid to the art galleries and other sellers for the art works purchased on plaintiff's behalf. Plaintiff also alleges that defendant further breached his contractual obligations by keeping primary works and other highly coveted art works for himself and/or selling those art works to third parties without first offering the works to him in derogation of his right of first opportunity to purchase art works offered to defendant.
Defendant asserts that no enforceable contract between him and plaintiff exists. The elements of a cause of action to recover damages for breach of contract are the formation and existence of a contract between the parties, the plaintiff's performance under the contract, the defendant's breach of the contract by his or her failure to perform, and resulting damages (see Kausal v. Educational Prods. Info. Exch. Inst., 105 AD3d 909, 910 [2d Dept 2013], appeal dismissed 21 NY3d 1039 [2013] ; Elisa Dreier Reporting Corp. v. Global NAPs Networks, Inc., 84 AD3d 122, 127 [2d Dept 2011] ; Palmetto Partners, L.P. v. AJW Qualified Partners, LLC, 83 AD3d 804, 806 [2d Dept 2011] ; JP Morgan Chase v. J.H. Elec. of NY, Inc., 69 AD3d 802, 803 [2d Dept 2010] ; Furia v. Furia, 116 A.D.2d 694, 695 [2d Dept 1986] ).
It is well established that in order to give rise to a binding and enforceable contract, there must be “an objective meeting of the minds,” and “a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms” (Matter of Express Indus. & Term. Corp. v. New York State Dept. of Transp., 93 N.Y.2d 584, 589 [1999], rearg. denied 93 N.Y.2d 1042 [1999] ; see also Mills v. Chauvin Mills, 103 AD3d 1041, 1047 [3d Dept 2013] ; Robison v. Sweeney, 301 A.D.2d 815, 817 [3d Dept 2003] ). The meeting of the minds must include agreement on all essential terms, and if an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract (see Kowalchuk v. Stroup, 61 AD3d 118, 121 [1st Dept 2009] ). The alleged agreement must establish the intention of the parties with sufficiently certainty and definiteness so as to be enforceable by a court (see Mills, 103 AD3d at 1047 ). “Impenetrable vagueness and uncertainty will not do' “ (Express Industries, 93 N.Y.2d at 590, quoting Cobble Hill Nursing Home v. Henry & Warren Corp., 74 N.Y.2d 475, 483 [1989] ).
The purported oral contract alleged by plaintiff in support of his breach of contract claim, according to plaintiff's opposition to defendant's motion, provided only for “Defendant's services as an art advisor for a ten percent advisory fee on works purchased by Plaintiff, with the inclusion of a right of first opportunity to purchase art works made available to Cahan” (Memorandum of Law in Opposition at 8). Any claim of exclusivity, that plaintiff would be defendant's only client, has been jettisoned (id. ), however, much of plaintiff's complaint is based upon the alleged failure to provide him the right of first refusal on all work offered to defendant. As to that claim, the Complaint fails to state a cause of action as it fails to adequately set forth or define the manner and time in which defendant was required to offer the art work to plaintiff and in which plaintiff would be required to exercise his alleged right of first opportunity, and when defendant could offer the art works to third parties or purchase them himself. Plaintiff's Complaint also complains that defendant represented in some contexts that he was the purchaser, rather than plaintiff, although the precise terms of purchase are not defined in the alleged oral agreement. Thus, the material terms of the alleged oral contract are so vague as to demonstrate the absence of a meeting of the minds and the lack of an enforceable contract.
Moreover, as to the alleged contractual obligation of defendant to give plaintiff a first opportunity to purchase all works available to defendant before offering them to any other client or purchasing for himself, there is no consideration as no minimum purchase by plaintiff is required. Thus, this aspect of the alleged contract is illusory, as there is no reciprocal promise by plaintiff, and such contract is unenforceable (see Curtis Properties Corp. v. Greif Companies, 212 A.D.2d 259, 265 [1st Dept 1995] ).
Defendant's motion further seeks dismissal of plaintiff's breach of contract cause of action based upon the statute of frauds, arguing that pursuant to Uniform Commercial Code (UCC) 2–201, “a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker.”
Here, however, the alleged contract appears to be for defendant's rendering of art advice to facilitate the purchase of art works by plaintiff, which would constitute services. In addition, defendant was acting as a broker in effecting the actual purchases. The court is thus presented with a “hybrid sales-services contract,” that is, “a contract that calls for the furnishing of both goods and services” (Fallsview Glatt Kosher Caterers, Inc. v. Rosenfeld, 7 Misc.3d 557, 560 [Civil Ct, Kings County 2005] ). “[C]ourts look to the main objective sought to be accomplished by the contracting parties to determine whether a contract is for the sale of goods or rendition of services” (Robins v. Zwirner, 713 F Supp 2d 367, 375 [SD N.Y.2010] ). Although plaintiff characterizes the alleged agreement to be for advisory or consulting services, the Court notes that plaintiff, in his amended complaint, seeks damages for, among other things, being charged more for art works that defendant purchased on plaintiff's behalf than the price that the gallery actually charged defendant. Many of the allegations concern the actual purchase of art from defendant for over $1 million. Thus, it is clear that the contract was for the sale of goods. Inasmuch as the breach of contract claim rests upon the purchase of goods in excess of $500, enforcement of the alleged oral contract would be barred by the statute of frauds under UCC 2–201 .
Moreover, the statute of frauds contained in General Obligations Law § 5–701(a)(10) provides, in relevant part, that a contract to pay compensation for services rendered in negotiating ... the purchase ... of a business opportunity” must be supported by a writing or memorandum, subscribed by the party to be charged therewith, and that in the absence of such a writing, the agreement is void and unenforceable. This section defines the term “negotiating” to include “procuring an introduction to a party to the transaction or assisting in the negotiation or consummation of the transaction.” The art advisory services rendered by defendant in negotiating the purchase of art works for investment purposes fall within the scope of this section, rendering the alleged oral agreement barred by the statute of frauds (see General Obligations Law § 5–701[a][10] ; JF Capital Advisors, LLC v. Lightstone Group, LLC, 115 AD3d 591, 592 [1st Dept 2014] ; MP Innovations, Inc. v. Atlantic Horizon Intl., Inc., 72 AD3d 571, 572 [1st Dept 2010] ; Enfeld v. Hemmerdinger Estate Corp., 34 A.D.2d 980, 981 [2d Dept 1970], affd 28 N.Y.2d 606 [1971] ). Consequently, dismissal of plaintiff's third cause of action is mandated based upon the statute of frauds (see CPLR 3211 [a][5] ).
Plaintiff's second cause of action for fraud alleges that defendant made misrepresentations to him regarding his qualifications to act as his art advisor and also made misrepresentations while acting in that capacity in order to induce him to purchase particular works of art and to pay him commissions, and to convince him that the purchases made by defendant on plaintiff's behalf would benefit him by establishing him as a serious art buyer and collector in the eyes of gallery owners and other sellers. While these same allegations underlie plaintiff's breach of contract claim, the second cause of action actually alleges fraud in the inducement of the advisory relationship, which is acknowledged in e-mails, and the purchases made with plaintiff's funds in reliance thereon. Although it is well established that “ “a cause of action to recover damages for fraud will not arise whe[re] the only fraud charged relates to a breach of contract' “ “ (Weinstein v. Natalie Weinstein Design Assoc., Inc., 86 AD3d 641, 642–643 [2d Dept 2011], quoting Yenrab, Inc. v. 794 Linden Realty, LLC, 68 AD3d 755, 757 [2d Dept 2009], quoting Mastropieri v. Solmar Constr. Co., 159 A.D.2d 698, 700 [2d Dept 1990] ; see also American–European Art Assoc. v. Trend Galleries, 227 A.D.2d 170, 171 [1st Dept 1996] ), giving the broadest reading to plaintiff's claims, the fraud alleged induced the contract which has been found to be unenforceable, both because it is vague and uncertain, and because it was not reduced to a writing. A fraud in the inducement cause of action involves a separate breach of duty from the obligations imposed under the contract. As it is, therefore, collateral to the contract, a separate cause of action for fraud in the inducement, in addition to the breach of contract, may be maintained (Held v. Kaufman, 91 N.Y.2d at 431 ; Go Smile, Inc. v. Levine, 81 AD3d 77, 81–82 [2d Dept 2010] ). However, “there can be no viable claim for fraudulent inducement to enter an unenforceable contract” (Clifford R. Gray, Inc. v. Le Chase Construction Services, LLC, 31 AD3d 983, 986 [3d Dept 2006], citing Held v. Kaufman, 91 N.Y.2d at 431–432 ). Consequently, dismissal of plaintiff's second cause of action for fraud is granted (see CPLR 3211[a][7] ; 3016[b] ).
Plaintiff's fourth cause of action for negligence alleges that defendant breached his duty to exercise reasonable care in the manner in which he conducted himself while acting as his art advisor by making recommendations to him as to what works of art to purchase without any qualifications or credentials to act as a professional art advisor, making suspect and uninformed evaluations as to the appropriate price he should pay for the works of art that he recommended for purchase, making misrepresentations to art galleries, other sellers, and the general public as to the true identity of the purchaser of the works of art that he purchased on plaintiff's behalf, and by failing to have his art works timely delivered into his possession.
The essence of this claim by plaintiff, however, is for breach of contract, not tort, as plaintiff fails to allege that defendant breached any duty other than that which he claims arose under the purported agreement. “[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 [1987] ). “This legal duty must spring from circumstances extraneous to, and not constituting elements of the contract, although it may be connected therewith and dependent upon the contract” (id. ). No independent legal duty to plaintiff has been alleged. Moreover, the harm of which plaintiff complains is economic loss, for which there is no recovery in negligence (see Carpenter v. Plattsburgh Wholesale Homes, Inc., 83 AD3d 1175, 1176 [1st Dept 2011] ). Therefore, since plaintiff's fourth cause of action fails to state a viable cause of action for negligence, it must be dismissed (see CPLR 3211[a][7] ).
Plaintiff's fifth cause of action for gross negligence contains the same allegations as his fourth cause of action for negligence, but adds that defendant conducted himself in such a reckless manner while acting as his art advisor so as to indicate a disregard for the consequences of his actions. This claim also sounds in contract, rather than in tort, and merely alleging that such conduct was “reckless” does not give this claim a separate and independent identity as a tort claim (see OFSI Fund II, LLC v. Canadian Imperial Bank of Commerce, 82 AD3d 537, 539 [1st Dept 2011], lv denied 17 NY3d 702 [2011] ; Baker v. 16 Sutton Place Apt. Corp., 2 AD3d 119, 121 [1st Dept 2003] ). Thus, this cause of action likewise fails to state a viable cause of action and must be dismissed (see CPLR 3211[a][7] ).
Plaintiff's sixth cause of action under General Business Law § 349 for deceptive acts and practices alleges that defendant engaged in deceptive acts and practices in connection with the services he provided to plaintiff, including misrepresenting the actual prices of art works, overcharging him for art works purchased on his behalf, basing his 10% commission on inflated prices, misrepresenting to art galleries, other sellers, and the general public that the art works purchased on plaintiff's behalf were actually being purchased by defendant or other third parties, keeping for himself or selling to third parties primary works and other highly coveted works of art without affording him the opportunity to purchase the works under the right of first opportunity promised to him, failing to deliver works of art that he purchased on his behalf, and charging sales tax while claiming he had a valid certificate of authority from the New York State Department of Taxation and Finance to collect such taxes, when, in fact, he had no such certificate of authority.
General Business Law § 349 “was intended [as] a consumer protection statute” (Teller v. Bill Hayes, Ltd., 213 A.D.2d 141, 145 [2d Dept 1995], lv dismissed in part, denied in part 87 N.Y.2d 937 [1996] ). “Private contract disputes, unique to the parties ... [do] not fall within the ambit of the statute” (Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25 [1995] ). Rather, in order to constitute a violation of General Business Law § 349, the alleged conduct must be “consumer oriented,” which has “a broad impact on consumers at large” (New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 320 [1995] ). “Private transactions without ramifications for the public at large are not the proper subject of [such] a claim” (Canario v. Gunn, 300 A.D.2d 332, 333 [2d Dept 2002] ). Here, the conduct in which defendant allegedly engaged was a private transaction between him and plaintiff, and cannot be construed as having a broad impact on consumers at large so as to fall within the ambit of General Business Law § 349. While plaintiff contends defendant's misrepresentations may mislead other members of the public, there is no indication of actual damage to the public as a result. Consequently, this cause of action must be dismissed (see CPLR 3211[a][7] ).
Incorporating all prior allegations, plaintiff's seventh cause of action for negligent misrepresentation alleges that defendant had a duty to be truthful in his representations to him regarding his conduct while acting as his art advisor, and that defendant negligently made misrepresentations by, inter alia, providing him with inflated prices for the art works that he purchased on his behalf and calculating his commissions based on these inflated prices. “A claim for negligent misrepresentation requires the plaintiff to demonstrate (1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information” (J.A.O. Acquisition Corp. v. Stavitsky, 8 NY3d 144, 148 [2007], rearg. denied 8 NY3d 939 [2007] ). “In the commercial context, liability for negligent misrepresentation has been imposed only on those persons who possess unique or specialized expertise, or who are in a special position of confidence and trust with the injured party such that reliance on the negligent misrepresentation is justified' “ (Fresh Direct, LLC v. Blue Martini Software, Inc., 7 AD3d 487, 489 [2d Dept 2004], quoting Kimmell v. Schafer, 89 N.Y.2d 257, 263 [1996] ). Clearly, the allegations, that plaintiff reposed such confidence in defendant that purchases of art work costing hundreds of thousands of dollars were made in reliance upon defendant's representations, not only of his own expertise, but upon the represented qualities of the art works and the terms of such purchases from third parties, are sufficient to establish the requisite special relationship (see id. ). Here, however, the relationship alleged and the duty claimed are based upon the alleged oral contract between plaintiff and defendant. A claim of negligent misrepresentation cannot be independently asserted within the context of a breach of contract action unless “the alleged misrepresentation concerns a matter which is extraneous to the contract itself” (Alamo Contract Bldrs. v. CTF Hotel Co., 242 A.D.2d 643, 644 [2d Dept 1997] ; see also Fresh Direct v. Blue Martini Software, 7 AD3d at 489 ). Thus, plaintiff's negligent misrepresentation claim cannot survive as it is based on the same alleged wrongful conduct and alleges the same damages as his breach of contract claim (see Board of Mgrs. of Soho N. 267 W 124th St. Condominium v. NW 124 LLC, 116 AD3d 506, 507 [1st Dept 2014] ; Sutton v. Hafner Valuation Group, Inc., 115 AD3d 1039 [3d Dept 2014] ). Dismissal of plaintiff's claim of negligent misrepresentation is therefore granted (see CPLR 3211[a][7] ).
Plaintiff's eighth cause of action for unjust enrichment seeks to recover the consulting fees he paid to defendant, which, he claims, were in excess of $110,000. An unjust enrichment claim, however, is not viable where, as here, the claim merely seeks the enforcement of an unenforceable contract, and is duplicative of a claim for a breach of such an unenforceable contract (see Mark Bruce Intl., Inc. v. Blank Rome, LLP, 60 AD3d 550, 551 [1st Dept 2009] ). Furthermore, plaintiff may not utilize a quantum meruit theory of recovery to circumvent the statute of frauds (see American–European Art Assoc. v. Trend Galleries, 227 A.D.2d 170, 171 [1st Dept 1996] ). Therefore, dismissal of this cause of action is mandated (see CPLR 3211[a][7] ).
With respect to plaintiff's ninth cause of action for an accounting, it is noted that in the absence of a confidential or fiduciary relationship, a plaintiff has no viable cause of action for an accounting (see Saunders v. AOL Time Warner, Inc., 18 AD3d 216, 217 [1st Dept 2005] ; Palazzo v. Palazzo, 121 A.D.2d 261, 265 [2d Dept 1986] ; Raske v. Next Mgt., LLC, 40 Misc.3d 1240 [A], 2013 N.Y. Slip Op 51514[U], *32 [Sup Ct, N.Y. County 2013] ). Since, as discussed above, no such confidential or fiduciary relationship existed between plaintiff and defendant, plaintiff is not entitled to an accounting, and this cause of action must be dismissed (see CPLR 3211[a] [7] ).
CONCLUSION
Accordingly, defendant's motion for an order dismissing plaintiff's amended complaint in its entirety is granted.
This constitutes the decision, order, and judgment of the court.