Opinion
INDEX 653375/2020
03-10-2022
MAY TSAI, Plaintiff, v. MARK PAUL LO and LI YU YEN Defendants. MOTION SEQ. NO. 001
DEBRA JAMES, J.S.C.
Unpublished Opinion
MOTION DATE 11/30/2020
DECISION + ORDER ON MOTION
DEBRA JAMES, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 17, 18, 19, 20, 21, 22, 23, 24, 25 were read on this motion to/for DISMISSAL
ORDER
Upon the foregoing documents, it is
ORDERED that the motion of plaintiff pursuant to CPLR 3211(a)(1) and 3211(a)(7) to dismiss the first counterclaim for breach of contract, the second counterclaim for specific performance, the third counterclaim for detrimental reliance, the fourth counterclaim for fraud and misrepresentation, and the fifth counterclaim for breach of fiduciary duty that defendants interposed in their Amended Answer with Counterclaims is GRANTED, and the first, second, third, fourth, and fifth counterclaims of the Amended Answer with Counterclaims are dismissed; and it is further
ORDERED that counsel shall transmit to SFC-Part59@nycourts.gov and post on NYSCEF a proposed preliminary conference order or proposed competing preliminary conference order (s) at least two days before April 6, 2022, on which date counsel shall appear via Microsoft Teams, unless such appearance is waived by the court.
DECISION
Plaintiff is correct that defendants' first counterclaim for breach of contract to sell a fifty percent membership interest in Kissena HTL, LLC (KHTL), whose sole asset is the property known as 41-60 Kissena Boulevard, Flushing, New York, fails as violative of General Obligations Law § 5-703(2) (Statute of Frauds). In their Amended Answer with Counterclaims, which is not verified by either defendant (NYSCEF Document No. 16), defendants merely state that "Plaintiff promised that they would agree to a sale of the property two years after closing to allow a third party to purchase a 50% membership interest in KHTL." Nowhere in such pleading or the defense counsel affirmation in opposition are there any allegations of a memorandum, signed by the party to be charged that states the essential terms of a complete agreement, including, but not limited to, the sales price of such property. See Generas v Hotel Pes Artistes, Inc., 117 A.D.2d 563, 566 (1986) .
This court concurs with plaintiff that the first cause of action also fails because it alleges an agreement to agree, which is unenforceable. See Joseph Martin, Jr., Delicatessen, Inc. v Schumacher, 52 N.Y.2d 105, 109-110 (1991) . In addition, the second cause of action for specific performance, which is a remedy for breach of contract and not a claim, also lacks merit for the same reasons. Ibid.
Furthermore, as argued by plaintiff, defendants' third, fourth and fifth counterclaims sounding in fraud and breach of fiduciary duty are duplicative of the first and second counterclaims for breach of contract and are thus not sustainable. See Newport East Inc. v Sviba Floral Decorators, Inc., __ N.Y.3d __, 2022 NY Slip Op 00819 (1 Dept 2022); Kamyr, Inc. v Combustion Engineering, Inc., 198 A.D.2d 44 (1 Dept 1993); and William Kaufman Organization, Ltd. v Graham & James LLP, 2 69 A.D.2d 171, 173 (1
Dept 2000) ("A cause of action for breach of fiduciary duty which is merely duplicative of a breach of contract claim cannot stand.") See also Manas v VMS Associates, LLC, 53 A.D.3d 451, 454-455 (1
Dept 2008):
"Rather, because they are merely '[g]eneral allegations that defendant(s) entered into a contract while lacking the intent to perform it[, the allegations} are insufficient to support [the fraud-based] claim[s]'. . .
"Additionally, the fraud-based causes of action must be dismissed for another, independent reason. ***Here, plaintiff did not allege that she sustained any damages that would not be recoverable under her breach of contract cause of action. . . .Thus, the fraud-based causes of action are duplicative of the breach of contract cause of action."
CHECK ONE: [ ] CASE DISPOSED [X] NON-FINAL DISPOSITION
GRANTED [X] [ ] DENIED [ ] GRANTED IN PART [ ] OTHER
APPLICATION: [ ] SETTLE ORDER [ ] SUBMIT ORDER
CHECK IF APPROPRIATE: [ ] INCLUDES TRANSFER/REASSIGN [ ] FIDUCIARY APPOINTMENT [ ] REFERENCE