

BML Props. Ltd. v China Constr. Am. Inc. (2019 NY Slip Op 05339)





BML Props. Ltd. v China Constr. Am. Inc.


2019 NY Slip Op 05339


Decided on July 2, 2019


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 July 2, 2019

Richter, J.P., Tom, Gesmer, Kern, Moulton, JJ.


9800N 657550/17

[*1] BML Properties Ltd., Plaintiff-Respondent,
vChina Construction America Inc., etc., et al., Defendants-Appellants, Does 1-10, et al., Defendants.


Squire Patton Boggs (US) LLP, New York (Mitchell R. Berger of counsel), for appellants.
Morrison Cohen LLP, New York (Malcolm I. Lewin of counsel), for respondent.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered on or about January 24, 2019, which, to the extent appealed from as limited by the briefs, denied defendants' motion to compel arbitration, or, alternatively, to dismiss the causes of action for fraud, unanimously affirmed, without costs.
The court correctly denied the branch of defendants' motion seeking to compel arbitration because plaintiff was not a party to the agreement containing the arbitration clause and the claims at issue were, by separate agreement, required to be litigated in New York (see Matter of Cammarata v InfoExchange, Inc., 122 AD3d 459, 460 [1st Dept 2014]; Oxbow Calcining USA Inc. v American Indus. Partners, 96 AD3d 646, 649-650 [1st Dept 2012]).
Plaintiff adequately stated a claim for fraud, by asserting justifiable reliance upon assurances, alleged to have been false when made, regarding the project's status, and the workforce and resources available to meet the deadline for completion of the project, which were collateral to, and not duplicative of plaintiff's claims for breach of contract (see Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954, 956 [1986]; MBIA Ins. Corp. v Countrywide Home Loans, Inc., 87 AD3d 287, 294 [1st Dept 2011]; GoSmile, Inc. v Levine, 81 AD3d 77, 81 [1st Dept 2010], lv dismissed 17 NY3d 782 [2011]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 2, 2019
CLERK


