Opinion
Index No.: 2090/2018
01-02-2020
BRIAN SUTHERLAND, Plaintiff, v. PHILIP J. FITZPATRICK and PHILIP J. FITZPATRICK, P.C., Defendants.
To: Jeffrey Benjamin, Esq. Kupillas, Unger & Benjamin, LLP Attorney for Plaintiff 5 Penn Plaza, 23rd Floor New York, NY 10001 Joseph L. Francoeur, Esq. Tina C. Ma Wilson, Elser, Moskowitz, Edelman & Dicker, LLP Attorney for Defendant 150 East 42nd Street New York, NY 10017-5639
NYSCEF DOC. NO. 50 At an IAS Term, Part 34 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse thereof at 360 Adams St., Brooklyn, New York on the 2nd day of January 2020. PRESENT: HON. LARA J. GENOVESI, J.S.C. DECISION & ORDER MS # 2 Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:
| NYSCEF Doc. No.: | |
|---|---|
| Notice of Motion/Cross Motion/Order to Show Cause andAffidavits (Affirmations) Annexed | 5 - 29 |
| Opposing Affidavits (Affirmations) | 31 - 45 |
| Reply Affidavits (Affirmations) | 46-47 |
Introduction
Defendants, Philip J. Fitzpatrick and Philip J. Fitzpatrick, P.C., move by notice of motion, sequence number two, pursuant to CPLR § 3211(a)(1) and (7) to dismiss plaintiff's second amended complaint; (2) directing the clerk to enter judgment in favor of defendants; (3) awarding costs of this motion to defendant; and (4) for such other and further relief as the court deems just and proper. Plaintiff, Brian Sutherland, opposes this motion.
Background & Procedural History
This action arises from plaintiff's purchase of the premises at 4029 Hylan Boulevard, Staten Island, New York, a restaurant/tavern formerly known as the Dugout South. Plaintiff, through Access Unlimited Corporation, purchased the property from Let the Good Times Roll, LLC (the seller). In this transaction, plaintiff was represented by a James D. Bonamassa, Esq. Defendant, Brian Sutherland, represented the seller.
Plaintiff understood the restaurant to have both an indoor and outdoor bar in the patio area. However, the outdoor "Tiki Bar" on the patio was not operating at the time of the negotiations. Plaintiff stated that in the spring of 2015, the seller told him that the outdoor bar was temporarily closed due to a property line dispute with the attorney's office, located adjacent to the premises. According to plaintiff, this was confirmed by defendant. Plaintiff believed that the outdoor bar could resume operations once it was properly permitted (see NYSCEF Doc. # 32, Plaintiff's Affidavit in Opposition at ¶¶ 11-13).
After numerous visits to the location, plaintiff executed an agreement on June 23, 2016, to purchase the premises for $325,000.00. This agreement was contingent upon approval of a Liquor License. The seller represented that the premises had liquor licenses #1255966 and #1255967, which expired July 31, 2015. Plaintiff retained defendants, who had previously represented the seller in the purchase of the property, to assist in applying for a New York State Liquor License for the premises. An application was submitted to the New York State Liquor Authority on July 21, 2015, seeking to license the first and second floors, as well as the patio area. A temporary retail permit was issued on July 24, 2015. The parties closed on the property on August 17, 2015, and plaintiff began operating the premises as Joe Broadway Sports Pub the following month.
On September 6, 2015 and September 9, 2015, complaints were filed by the community board regarding plaintiff's use of the outdoor bar and patio area of the premises. On September 24, 2015, defendant submitted a letter to the Community Board, with an amended application, stating that plaintiff was withdrawing the portion of its application for a liquor license for the patio area. On October 8, 2015, the Community Board withdrew its objections to the liquor license application. On November 9, 2015, liquor license #1287661 was issued to the premises for the indoor areas.
As a result of Sutherlands failure to pay the balance due under the promissory note by February 2016, the seller commenced an action against plaintiff in Supreme Court, Richmond County, under index number 150253/2016. In that action, Sutherland asserted a counterclaim alleging that the seller made false representations about the premises' use of the outdoor patio and whether they were licensed to serve alcohol on the patio.
Sutherland, the plaintiff herein, commenced the instant action by filing a summons and complaint on August 17, 2018. In this action plaintiff is suing his former attorney Fitzpatrick, individually as well as his professional practice, who was hired to help obtain liquor licenses for the property and patio. Plaintiff alleges that Fitzpatrick misrepresented his ability to obtain a liquor license for the entire premises, inclusive of the patio area. Plaintiff maintains that their failure to maintain a liquor license for the patio lead to the ultimate failure of the business and loss of investment money.
This Court notes that the parties consented to convert the matter to e-filing on March 29, 2019 (see NYSCEF Doc. # 3).
Defendant moves herein to dismiss plaintiff's Second Amended Verified Complaint and all other claims asserted against defendants. In the Second Amended Verified Complaint, plaintiff alleges the following causes of action: (1) Fraudulent Inducement and Concealment; (2) Deceptive Business Practices; (3) Breach of Fiduciary Duty; (4) Unjust Enrichment; (5) Negligence; (6) Breach of Contract; and (7) Breach of Implied Covenant of Good Faith and Fair Dealing (see NYSCEF Doc. # 12). In their motion, defendants move to dismiss all of these causes of action, as well as a claim for legal malpractice. This Court notes that in plaintiff's original complaint, he asserted a cause of action for legal malpractice (see NYSCEF Doc. # 1). In his affirmation in opposition, plaintiff addressed the following branches of defendants' motion to dismiss plaintiff's second amended complaint: (1) Fraudulent Inducement and Concealment; (2) Deceptive Business Practices; (3) Breach of Fiduciary Duty; (4) Unjust Enrichment; (5) Negligence and (6) Legal Malpractice. This Court notes that plaintiff did not address the sixth and seventh causes of action for Breach of Contract and Breach of Implied Covenant of Good Faith and Fair Dealing.
Discussion
Defendants move herein pursuant to CPLR § 3211(a)(1) and (7) to dismiss plaintiffs second amended complaint, based on documentary evidence or that the pleading fails to state a cause of action. "A motion pursuant to CPLR 3211(a)(1) to dismiss based on documentary evidence may be appropriately granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law" (Stone v. Bloomberg L.P., 163 A.D.3d 1028, 83 N.Y.S.3d 78 [2 Dept., 2018], quoting Feldshteyn v. Brighton Beach 2012, LLC, 153 A.D.3d 670, 61 N.Y.S.3d 60 [2 Dept., 2017]; see also Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 746 N.Y.S.2d 858 [2002]). "If the evidence submitted in support of the motion is not 'documentary,' the motion must be denied" (Phillips v. Taco Bell Corp., 152 A.D.3d 806, 60 N.Y.S.3d 67 [2 Dept., 2017], citing Prott v. Lewin & Baglio, LLP, 150 A.D.3d 908, 55 N.Y.S.3d 98 [2 Dept., 2017]).
"To constitute 'documentary' evidence, the evidence must be 'unambiguous, authentic, and undeniable' such as judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable [internal citations and quotations marks omitted]" (Karpovich v. City of New York, 162 A.D.3d 996, 80 N.Y.S.3d 364 [2 Dept., 2018], quoting Granada Condo. III Ass'n v. Palomino, 78 A.D.3d 996, 913 N.Y.S.2d 668 [2 Dept., 2010]; see also Phillips v. Taco Bell Corp., 152 A.D.3d 806, supra).
"When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" (Bennett v. State Farm Fire & Cas. Co., 161 A.D.3d 926, 78 N.Y.S.3d 169 [2 Dept., 2018], quoting Sokol v Leader, 74 A.D.3d 1180, 904 N.Y.S.2d 153 [2 Dept., 2010]). "[T]he pleading must be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory" (Trump Vill. Section 4, Inc. v. Bezvoleva, 161 A.D.3d 916, 78 N.Y.S.3d 129 [2 Dept., 2018], citing Leon v Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972 [1994]; see also Mirro v. City of New York, 159 A.D.3d 964, 74 N.Y.S.3d 356 [2 Dept., 2018]). "[T]he sole criterion is whether factual allegations are discerned from the four corners of the complaint which, taken together, manifest any cause of action cognizable at law" (Law Offices of Thomas F. Liotti v. Felix, 129 A.D.3d 783, 9 N.Y.S.3d 888 [2 Dept., 2015], citing Cohen v. Kings Point Tenant Corporation, 126 A.D.3d 843, 6 N.Y.S.3d 93 [2 Dept., 2015]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus" (Trump Vill. Section 4, Inc. v. Bezvoleva, 161 A.D.3d 916, supra, quoting EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 799 N.Y.S.2d 170 [2005]).
"In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims" (Garcia v. Polsky, Shouldice & Rosen, P.C., 161 A.D.3d 828, 77 N.Y.S.3d 424 [2 Dept., 2018], quoting Cron v. Hargro Fabrics, 91 N.Y.2d 362, 670 N.Y.S.2d 973 [1998]; see also Rad & D'Aprile, Inc. v. Arnell Constr. Corp., 159 A.D.3d 971, 74 N.Y.S.3d 266 [2 Dept., 2018]). "A motion to dismiss merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party's cause of action" (Kaplan v. New York City Dep't of Health & Mental Hygiene, 142 A.D.3d 1050, 38 N.Y.S.3d 563 [2 Dept., 2016]).
First Cause of Action: Fraudulent Inducement and Concealment
Defendants contend that plaintiff failed to sufficiently plead a cause of action for fraudulent inducement in the second amended complaint. "To state a [cause of action to recover damages] for fraudulent inducement, there must be a knowing misrepresentation of material present fact, which is intended to deceive another party and induce that party to act on it, resulting in injury" (Tsinias Enterprises Ltd. v. Taza Grocery, Inc., 172 A.D.3d 1271, 101 N.Y.S.3d 138 [2 Dept., 2019], quoting GoSmile, Inc. v. Levine, 81 A.D.3d 77, 915 N.Y.S.2d 521 [1 Dept., 2010]). "Where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful [sic] default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail" (CPLR § 3016[b]).
In the instant case, plaintiff alleges the following:
31) Fitzpatrick made false representations and omissions described above in support of his scheme to defraud Plaintiff. In particular, Fitzpatrick; (1) while acting as legal counsel for the sellers, represented that the subject premises which Plaintiff contemplated for purchase had a separate New York State Liquor License for an outdoor patio area which would
provide Plaintiff a considerable source of ongoing revenue; (2) Fitzpatrick represented to Plaintiff that his prior affiliation with the New York State Liquor Authority gave him the ability to streamline the process of approval for a new Liquor License and offered to represent Plaintiff for a discounted retainer fee; defendant then did represent Plaintiff in a sham application process which purportedly included approval of a Liquor License for the outdoor patio area predicated upon the seller's existing License. Said License did not exist, which caused Community Board No. 3 to object to Plaintiff's application; and (3) Fitzpatrick knowing that Plaintiff had spent thousands of dollars on renovations to the subject property based upon the imminent issuance of a Liquor License for the outdoor patio area, without Plaintiff's consent, submitted to Community Board No. 3, a new Standardized Written Notice that Plaintiff no longer intended to utilize the outdoor patio area, which ultimately resulted in the removal of its objection and the issuance of a restricted Liquor License to Plaintiff which did not include the outdoor the patio area or any outdoor service.(NYSCEF Doc. # 12 at ¶ 31).
32) Fitzpatrick made the false representations and omissions described above, and carried out the scheme described above, with the intent to deceive Plaintiff.
33) Plaintiff justifiably relied upon Fitzpatrick's misrepresentations and omissions.
34) Plaintiff was proximately damaged by his justified reliance and the trust placed in Fitzpatrick.
35) In addition to the thousands of dollars directly paid to Fitzpatrick, Plaintiff has spent hundreds of thousands of dollars that he would not otherwise have disbursed in the purchase and renovation of the subject property but for Fitzpatrick's fraudulent scheme.
As an initial matter, as plaintiff alleged "that the defendant made misrepresentations of present facts that were collateral to the contract and served as an inducement to enter into the contract, a cause of action alleging fraudulent inducement is not duplicative of a breach of contract cause of action" (Did-it.com, LLC v. Halo Grp., Inc., 174 A.D.3d 682, 102 N.Y.S.3d 687 [2 Dept., 2019], citing Greenberg v. Meyreles, 155 A.D.3d 1001, 66 N.Y.S.3d 297 [2 Dept., 2017]). Here, accepting all the facts alleged in the complaint as true and according plaintiff the benefit of every favorable inference, plaintiff sufficiently plead a cause of action for fraudulent inducement.
The second amended complaint states that defendant represented that the premises had a liquor license for the patio area and that his prior affiliation would enable defendant to streamline the application process and get plaintiff a liquor license for the patio area. Plaintiff relied on this promise when purchasing and renovating the property. Defendants do not dispute that the premises never had a liquor license for the patio area. In fact, defendant alleges that plaintiff was aware of that fact, based on his testimony in the Richmond County action (see Memorandum of Law in Support at p 2), which was provided herein (see Notice of Motion, Exhibit 14).
Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate" (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17).(Tsinias Enterprises Ltd. v. Taza Grocery, Inc., 172 A.D.3d 1271, supra). However, while plaintiff testified that he knew that the patio was not permitted, he stated that he was under the impression that if he submitted proper permit applications and renovated the patio to code, he "was in the clear" and "would be able to serve out there". He further testified "there is no way I would have purchased this business without the outside" (see NYSCEF Doc. # 14, Deposition of Brian Sutherland at p 42). This is further amplified by plaintiff's affidavit wherein he stated that,
In the Spring of 2015, I discussed the removal of the absence of the Tiki bar with the seller. The [sic] advised me that the closure was temporary as it involved a property line dispute with the new adjacent Attorney's office. The matter, which was expressly confirmed by Attorney Fitzpatrick, was due to the fact that no building permit was obtained for the construction of the Tiki Bar. It was further represented to me by the seller, and again confirmed by Attorney Fitzpatrick, that the Tiki could resume operations once it was properly permitted. There was never any indication by either the seller or Attorney Fitzpatrick that the true issue was that there were licensing issues that prevented operation of the Tiki bar.(NYSCEF Doc. # 32, Plaintiff's Affidavit in Opposition at ¶¶ 11-13). Inasmuch as this cause of action was plead with specificity and the evidence provided by defendant does not dispute the facts as alleged by plaintiff, defendant's motion to dismiss plaintiff's cause of action for fraudulent inducement is denied.
Second Cause of Action: General Business Law § 349- Deceptive Business Practices
Defendant moves to dismiss plaintiff's second cause of action for deceptive business practices.
General Business Law § 349(a) prohibits "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state." A cause of
action to recover damages for a violation of General Business Law § 349 must "identify consumer-oriented misconduct which is deceptive and materially misleading to a reasonable consumer, and which causes actual damages" (Wilner v. Allstate Ins. Co., 71 A.D.3d 155, 161-162, 893 N.Y.S.2d 208; see Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741). Private contract disputes, unique to the parties, do not fall within the ambit of General Business Law § 349 (see Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d at 25, 623 N.Y.S.2d 529, 647 N.E.2d 741; De Guaman v. American Hope Group, 163 A.D.3d at 917, 83 N.Y.S.3d 253).(Ramirez v. Donado Law Firm, P.C., 169 A.D.3d 940, 95 N.Y.S.3d 103 [2 Dept., 2019]).
Here, plaintiffs second amended complaint fails to identify consumer-oriented conduct that is deceptive and material misleading. Further, the dispute at hand is private and unique to the parties and therefore "does not fall within the ambit of General Business Law § 349" (id.). Accordingly, that portion of defendant's motion to dismiss the second cause of action for deceptive business practices is granted.
Third Cause of Action: Breach of Fiduciary Duty
Defendant moves to dismiss plaintiff's third cause of action for breach of fiduciary duty as duplicative of his claim for negligence. "In order to establish a breach of fiduciary duty, a plaintiff must prove the existence of a fiduciary relationship, misconduct by the defendant, and damages that were directly caused by the defendant's misconduct" (Hoeg Corp. v. Peebles Corp., 153 A.D.3d 607, 60 N.Y.S.3d 259 [2 Dept., 2017], lv. dismissed, 31 N.Y.3d 926, 95 N.E.3d 325 [2018], rearg. denied, 31 N.Y.3d 1112, 105 N.E.3d 353 [2018], quoting Fitzpatrick House III, LLC v. Neighborhood Youth & Family Servs., 55 A.D.3d 664, 868 N.Y.S.2d 212 [2 Dept., 2008]). "A cause of action to recover damages for breach of fiduciary duty must be pleaded with the particularity required under CPLR 3016(b)" (Benjamin v. Yeroushalmi, -- A.D.3d --, 2019 N.Y. Slip Op. 08647 [2 Dept., 2019], citing Litvinoff v. Wright, 150 A.D.3d 714, 54 N.Y.S.3d 22 [2 Dept., 2017]). Where "causes of action alleging breach of fiduciary duty contain[] only bare and conclusory allegations, without any supporting detail, they failed to satisfy the requirements of CPLR 3016(b)" (id., citing Theaprin Pharms., Inc. v. Conway, 137 A.D.3d 1254, 29 N.Y.S.3d 401 [2 Dept., 2016]).
Here, plaintiff failed to state a cause of action for breach of fiduciary duty. Plaintiff alleged the following in his cause of action for breach of fiduciary duty: "[d]efendants occupied a position of trust with plaintiff having been retained as counsel in the liquor license application transaction... As such, defendants had a fiduciary duty to plaintiff to not misappropriate or misrepresent the status, the facts known only to defendants or conduct himself in a way adverse to the interest of his client...In so acting, defendants breached their fiduciary duty to plaintiff" (Second Amended Complaint at ¶¶ 45-47).
Although it is clear that a fiduciary relationship existed between plaintiff and defendant as defendant represented plaintiff to procure liquor licenses for the premises, plaintiff failed to state, with specificity, the alleged misconduct by defendant or the damages allegedly caused by such misconduct. Bare and conclusory allegations are insufficient to meet the pleading requirements of CPLR § 3016 (see Benjamin v. Yeroushalmi, -- A.D.3d --, supra). Accordingly, that branch of defendant's motion to dismiss plaintiff's third cause of action for breach of fiduciary duty is granted.
Fourth Cause of Action: Unjust Enrichment
Defendant further moves to dismiss plaintiff's fourth cause of action for unjust enrichment.
To prevail on a cause of action alleging unjust enrichment, a party must establish that it conferred a benefit upon the other party, and that the other party will retain that benefit without adequately compensating the first party therefor (see MT Prop., Inc. v. Ira Weinstein & Larry Weinstein, LLC, 50 A.D.3d 751, 752, 855 N.Y.S.2d 627). The essential inquiry on any cause of action alleging unjust enrichment is whether it is against equity and good conscience to permit the party against whom it is asserted to retain what is sought to be recovered (see Paramount Film Distrib. Corp. v. State of New York, 30 N.Y.2d 415, 421, 334 N.Y.S.2d 388, 285 N.E.2d 695).(Beaman v. Awaye Realty Mgmt., LLC, 176 A.D.3d 1025, 108 N.Y.S.3d 881 [2 Dept., 2019]).
In the instant case plaintiff retained Fitzpatrick to help him obtain liquor licenses for the premises, including the patio. This relationship was governed by a retainer agreement, wherein plaintiff paid $6,500.00 for representation in obtaining a liquor license for the premises (see Notice of Motion, Exhibit 11). Plaintiff concedes in his complaint that this retainer agreement was valid. This Court notes that the retainer is silent as to whether the patio was included in their agreement with respect to representation. "[T]he written retainer agreement, which constitutes a valid and enforceable contract between the parties, precludes recovery under the causes of action sounding in... unjust enrichment..., which arise out of the same subject matter (Hoeg Corp. v. Peebles Corp., 153 A.D.3d 607, supra, citing Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 521 N.Y.S.2d 653 [1987]). Accordingly, that branch of defendant's motion to dismiss plaintiff's cause of action for unjust enrichment is granted.
Fifth Cause of Action: Negligence/Legal Malpractice/Negligent Misrepresentation
Defendants move to dismiss plaintiff's fifth cause of action for negligence. This Court notes that counsel for defendants conflates plaintiff's negligence cause of action with one for legal malpractice. In opposition, plaintiff sets forth arguments for a claim for negligent misrepresentation (see Affirmation in Opposition at ¶ 30-35) and for a legal malpractice claim (see id. at ¶¶ 36-38).
"To establish a prima facie case of negligence, a plaintiff must establish the existence of a duty, a breach of that duty, and that the breach of such duty was the proximate cause of his or her injuries" (Marasco v. C.D.R . Elecs. Sec. & Surveillance Sys. Co., 1 A.D.3d 578, 768 N.Y.S.2d 18 [2 Dept., 2003], quoting Gordon v. Muchnick, 180 A.D.2d 715, 579 N.Y.S.2d 745 [2 Dept., 1992]). "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 N.Y.3d 144, 863 N.E.2d 585 [2007], citing Parrott v. Coopers & Lybrand, 95 N.Y.2d 479, 718 N.Y.S.2d 709 [2000]).
"To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages [internal quotation marks omitted]" (Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d 812, 963 N.Y.S.2d 313 [2 Dept., 2013], quoting Held v. Seidenberg, 87 A.D.3d 616, 928 N.Y.S.2d 477 [2 Dept., 2011]). "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence" (Burbige v. Siben & Ferber, 152 A.D.3d 641, 58 N.Y.S.3d 562 [2 Dept., 2017], quoting Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 835 N.Y.S.2d 534 [2007]).
In the second amended complaint, plaintiff's fifth cause of action, entitled "Negligence" provides as follows,
53) Defendants were negligent, careless and reckless in failing to procure proper licensing for plaintiff. 54) Defendants breached their duty of ordinary care to plaintiff in failing to procure such proper licensing. 55) As a proximate result of defendant's negligence, plaintiff was caused to sustain significant money damages. 56) The damages sustained by plaintiff were occasioned, through and by reason of the carelessness, recklessness, and negligence of the defendants.(NYSCEF Doc. # 12 at ¶¶ 53-56).
This Court notes that the original complaint, dated August 17, 2018, alleges a cause of action for legal malpractice. However, "[t]he original complaint was superseded by the amended complaint. The original complaint is no longer viable, inasmuch as the amended complaint "takes the place of the original pleading" (Taub v. Schon, 148 A.D.3d 1200, 51 N.Y.S.3d 127 [2 Dept., 2017], quoting 100 Hudson Tenants Corp. v. Later, 98 A.D.2d 692, 470 N.Y.S.2d 1 [1 Dept., 1983]).
Here, plaintiff's fifth cause of action in the second amended complaint is not plead with specificity. Given the inconsistency in the prior pleadings and the arguments made herein, it is unclear what cause of action plaintiff attempts to state. To the extent that plaintiff's fifth cause of action alleges legal malpractice or negligent misrepresentation, it is insufficiently plead. It is undisputed that plaintiff retained defendants to procure liquor licenses for the premises. Although plaintiff specifically plead the existence of that relationship in his third cause of action for breach of fiduciary duty, the fifth cause of action is silent as to the nature of the relationship between plaintiff and defendant. It neither states that a privity-like relationship or an attorney-client relationship existed. It further fails to allege that plaintiff would have been successful in getting a liquor license for the outside patio and would not have incurred financial damages, but for defendant's negligence. However, to the extent that the fifth cause of action alleges general negligence, affording the complaint liberal construction, plaintiff sufficiently plead the existence of a duty, breach, causation and damages. Accordingly, that branch of defendant's motion to dismiss plaintiff's fifth cause of action for "negligence" is denied.
Conclusion
Accordingly, the defendants' motion to dismiss the second amended complaint is granted to the extent that plaintiff's second, third, fourth, sixth and seventh causes of action in the second amended complaint are dismissed.
This court notes that plaintiff's opposition is silent as to his sixth cause of action for Breach of Contract and his seventh cause of action for Breach of Implied Covenant of Good Faith and Fair Dealing. Accordingly, those portions of defendants' motion to dismiss causes of action six and seven are granted, without opposition.
Those branches of defendant's motion to dismiss plaintiff's first cause of action for fraudulent inducement and concealment and fifth cause of action for negligence are denied.
The foregoing constitutes the decision and order of this Court.
ENTER:
/s/_________
Hon. Lara J. Genovesi
J.S.C. To: Jeffrey Benjamin, Esq.
Kupillas, Unger & Benjamin, LLP
Attorney for Plaintiff
5 Penn Plaza, 23rd Floor
New York, NY 10001 Joseph L. Francoeur, Esq.
Tina C. Ma
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP
Attorney for Defendant
150 East 42nd Street
New York, NY 10017-5639