

Ferro Fabricators, Inc. v 1807-1811 Park Ave. Dev. Corp. (2015 NY Slip Op 03048)





Ferro Fabricators, Inc. v 1807-1811 Park Ave. Dev. Corp.


2015 NY Slip Op 03048


Decided on April 9, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 9, 2015

Tom, J.P., Friedman, Andrias, Feinman, Kapnick, JJ.


13550 155201/12

[*1] Ferro Fabricators, Inc., doing business as Greg's Iron Works, Inc., Plaintiff,
v1807-1811 Park Avenue Development Corp., et al., Defendants. 
ESF Property, Inc., et al., Third-Party Plaintiffs-Appellants, 
Architectural Stone, LLC, et al., Third-Party Defendants-Respondents, Navac Construction Corp., et al., Third-Party Defendants.


Sheats & Bailey, PLLC, Brewerton (Jason Bailey of counsel), for appellants.
Malvina Lin, P.C., Brooklyn (Malvina Lin of counsel), for respondents.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered July 8, 2013, which granted third-party defendants-respondents' motion to dismiss the claims against them, unanimously affirmed, without costs.
We decline third-party defendants' request that we dismiss this appeal due to third-party plaintiffs' alleged failure to comply with this Court's rules for perfecting the appeal (see Rules of App Div, 1st Dept [22 NYCRR] § 600.5[c], [d]). Because third-party defendants make this request and raise these arguments for the first time on appeal, they have acquiesced in any noncompliance (see Cetnar v Kinowski, 245 AD2d 974, 975 [3d Dept 1997]).
Third-party plaintiffs, the owners of the real property at issue, bring their Lien Law claim as "trustee" of funds allegedly received and held by the third-party defendant contractors. Although Lien Law § 77(1) provides that a trustee may maintain an action to enforce a trust, Lien Law § 70(5) provides that "[t]he assets of the trust of which [an] owner [of real property] is trustee are the funds received by him." Accordingly, third-party plaintiffs, as owners, are not the trustee of funds received by the third-party defendant contractors, and therefore they lack standing to maintain their Lien Law claim (third cause of action).
The second cause of action, for fraud/negligent misrepresentation, is not duplicative of defendant/third-party plaintiff ESF's breach of contract counterclaim against plaintiff/third-party defendant Ferro Fabricators, Inc., since it does not allege that Ferro entered into a contract intending not to perform (see MBIA Ins. Corp. v Countrywide Home Loans, Inc., 87 AD3d 287, 293 [1st Dept 2011]). However, the claim must still be dismissed for failure to plead with requisite particularity pursuant to CPLR 3016(b) (see e.g. Gregor v Rossi, 120 AD3d 447, 447 [1st Dept 2014] [holding that claims were not pleaded with requisite particularity because the words used by the defendants and the date of the alleged false representations were not set forth]). Here, the third-party complaint only contains general allegations as to the alleged [*2]misrepresentations and virtually no information as to when and by whom these representations were made.
Similarly, third-party plaintiffs' fourth cause of action, for negligence/professional malpractice, is not duplicative of ESF's breach of contract counterclaim, because "[a] legal duty independent of contractual obligations may be imposed by law as an incident to the parties' relationship [and] [p]rofessionals
. . . may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties" (Sommer v Federal Signal Corp., 79 NY2d 540, 551 [1992]). However, although the third-party complaint alleges that Ferro and third-party defendant Gregory Dec owed a duty to perform engineering services in a professional manner and without negligence, it fails to state nonconclusory allegations as to how the third-party defendants negligently discharged the alleged duties and what damage the alleged failure caused (cf. 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 82-83 [1st Dept 1999]).
With respect to the first cause of action, alter-ego liability is not an independent cause of action (see e.g. Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 141 [1993]). In any event, the first cause of action alleging alter-ego liability is too conclusory, since it fails to plead any particularized facts (see e.g. Andejo Corp. v South St. Seaport Ltd. Partnership, 40 AD3d 407, 407 [1st Dept 2007]).
We have considered third-party plaintiffs' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 9, 2015
DEPUTY CLERK


