Minkoff v Creative Manhattan, Inc. 2024 NY Slip Op 30376(U) January 31, 2024 Supreme Court, New York County Docket Number: Index No. 651691/2023 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 651691/2023 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 02/01/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ----------------------------------------------------------------- ----------------X INDEX NO. 651691/2023 AL YSEE DEE MINKOFF, MOTION DATE 07/21/2023 Plaintiff, MOTION SEQ. NO. 001 - V -
CREATIVE MANHATTAN, INC.,ANTIS CONTRACTING DECISION + ORDER ON CORP., PAUL MARCOS, MERLIN LAW GROUP, P.A. MOTION Defendant. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,27,28,29, 30, 31,32, 33, 34, 35, 36,38,39,40,41,42,43,44, 45,46,47, 60, 61 were read on this motion to/for DISMISS
This action arises out of an alleged breach of contract. Defendant Merlin Law Group,
P.A. ("MLG"), moves, pursuant to CPLR § 321 l(a)(l) and (a)(7), to dismiss the thirteenth,
fourteenth and fifteenth causes of action in the complaint 1. Plaintiff opposes the instant motion.
For the reasons set forth below, defendant's motion is granted2 .
Background
MLG is a law firm that previously represented plaintiff in connection with a still pending
insurance coverage and property damage action relating to plaintiff's apartment. The underlying
action arose from damage to plaintiff's apartment and its contents from a water leak.
The instant action arises out of allegations that the construction defendants, Creative
Manhattan, Inc., Antis Contracting Corp., and Paul Marcos, misrepresented work being
completed and charged for work that was not done and items not received. Plaintiff hired MLG
1 These are the only causes of action alleged against MLG. 2 The Court would like to thank Lillian Garber for her assistance in this matter. 651691/2023 Motion No. 001 Page 1 of 6
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to represent her in the underlying action and granted it a limited power of attorney. Plaintiff
contends that MLG exceeded its authority by paying the construction defendants in excess of the
amounts earned and owed.
Discussion
For the purposes of this motion, the court accepts the allegations in the complaint as true
and interprets the complaint liberally (see Alden, 159 AD3d at 621-622). Moreover, it gives
plaintiff"the benefit of every ... favorable inference" and "determine[s] only whether the facts
as alleged fit within any cognizable legal theory" (Gottlieb v Wynne, 159 AD3d 799, 800 [2nd
Dept 2018]).
Notwithstanding the broad pleading standard, a plaintiff's bald legal conclusions,
unsupported by factual specificity, will not withstand a motion to dismiss. See Godfrey v Spano,
13 NY3d 358, 373 [2009]. "Dismissal of the complaint is warranted if the plaintiff fails to assert
facts in support of an element of the claim, or if the factual allegations and inferences to be drawn
from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican
Grill, Inc., 29 NY3d 137, 142 [2017]).
"In a motion to dismiss pursuant to CPLR § 3211 (a) (1), the defendant has the burden of
showing that the relied-upon documentary evidence resolves all factual issues as a matter oflaw,
and conclusively disposes of the plaintiffs claim" (Fortis Fin. Servs., LLC v Fimat Futures USA,
Inc., 290 AD2d 383, 383 [1st Dept 2002] internal quotations and citations omitted). Further,
dismissal pursuant to CPLR § 321 l(a)(l) is warranted where documentary evidence
"conclusively establishes a defense to the asserted claims as a matter of law." Gottesman Co. v
A.E. W, Inc., 190 AD3d 522, 24 [1st Dept 2021].
651691/2023 Motion No. 001 Page 2 of 6
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Although defendants cite to emails as documentary evidence, this Court does not find that
those emails qualify as documentary evidence. As such, the Court looks only to the pleadings in
this action, as well as the filed responses to interrogatories in the related action (NYSCEF Doc.
47) to determine whether plaintiff's causes of action survive.
The crux of plaintiff's arguments and allegations against MLG is that it paid the
contractor defendants the entire amount of the job without authorization and to plaintiff's
detriment.
Fraud- Thirteenth Cause of Action
The Court finds that plaintiff's complaint fails to state a claim for fraud and plaintiff's
affidavit in opposition to the motion does not contain factual allegations to amplify the pleadings
with respect to this cause of action.
"To establish fraud, a plaintiff must show a misrepresentation or a material omission of
fact which was false and known to be false by [the] defendant, made for the purpose of inducing
the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or
material omission, and injury."' Ambac Assur. Corp. v Countrywide Home Loans, Inc., 151 AD3d
83 at 85 [1st Dept 2017]. Further, CPLR § 3016(b) provides that when a cause of action is based
upon fraud "the circumstances constituting the wrong shall be stated in detail."
Viewing the complaint in the light most favorable to the plaintiff and giving the plaintiff
all possible inferences, the complaint is devoid of any factual allegations to support a fraud cause
of action. The complaint alleges that misrepresentations were made, and that plaintiff relied on
them, without specific details. The complaint and the affirmation in opposition contains no
specific factual allegations as required by CPLR § 3016(b). Accordingly, plaintiff's thirteenth
cause of action against MLG is dismissed.
651691/2023 Motion No. 001 Page 3 of 6
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Breach of Fiduciary Duty- Fourteenth Cause of Action
In order to adequately plead a cause of action, plaintiff must allege the existence of a
fiduciary relationship, misconduct by the defendant and damages caused by the misconduct. See
Pokoikv Pokoik, 115 AD3d 428,429 [1st Dept 2014]. Pursuant to CPLR § 3016(b), where a
cause of action alleges breach of trust, "the circumstances constituting the wrong shall be stated
in detail".
It is clear the MLG was retained for the purpose of prosecuting the underlying insurance
litigation and the limited power of attorney explicitly provides that the authority is limited to act
on behalf of plaintiff in the property insurance claim. It is not alleged that MLG was hired to
oversee the restoration of plaintiffs home.
Here, the allegations that can be gleaned from the complaint and affidavit in opposition to
the instant motion, is that the alleged misconduct by MLG was the payment to the defendant
contractors "prematurely, unnecessarily and improperly". Further, the damages alleged are that
"the monies allocated to restore my home [ ...
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Minkoff v Creative Manhattan, Inc. 2024 NY Slip Op 30376(U) January 31, 2024 Supreme Court, New York County Docket Number: Index No. 651691/2023 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 651691/2023 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 02/01/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ----------------------------------------------------------------- ----------------X INDEX NO. 651691/2023 AL YSEE DEE MINKOFF, MOTION DATE 07/21/2023 Plaintiff, MOTION SEQ. NO. 001 - V -
CREATIVE MANHATTAN, INC.,ANTIS CONTRACTING DECISION + ORDER ON CORP., PAUL MARCOS, MERLIN LAW GROUP, P.A. MOTION Defendant. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,27,28,29, 30, 31,32, 33, 34, 35, 36,38,39,40,41,42,43,44, 45,46,47, 60, 61 were read on this motion to/for DISMISS
This action arises out of an alleged breach of contract. Defendant Merlin Law Group,
P.A. ("MLG"), moves, pursuant to CPLR § 321 l(a)(l) and (a)(7), to dismiss the thirteenth,
fourteenth and fifteenth causes of action in the complaint 1. Plaintiff opposes the instant motion.
For the reasons set forth below, defendant's motion is granted2 .
Background
MLG is a law firm that previously represented plaintiff in connection with a still pending
insurance coverage and property damage action relating to plaintiff's apartment. The underlying
action arose from damage to plaintiff's apartment and its contents from a water leak.
The instant action arises out of allegations that the construction defendants, Creative
Manhattan, Inc., Antis Contracting Corp., and Paul Marcos, misrepresented work being
completed and charged for work that was not done and items not received. Plaintiff hired MLG
1 These are the only causes of action alleged against MLG. 2 The Court would like to thank Lillian Garber for her assistance in this matter. 651691/2023 Motion No. 001 Page 1 of 6
1 of 6 [* 1] INDEX NO. 651691/2023 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 02/01/2024
to represent her in the underlying action and granted it a limited power of attorney. Plaintiff
contends that MLG exceeded its authority by paying the construction defendants in excess of the
amounts earned and owed.
Discussion
For the purposes of this motion, the court accepts the allegations in the complaint as true
and interprets the complaint liberally (see Alden, 159 AD3d at 621-622). Moreover, it gives
plaintiff"the benefit of every ... favorable inference" and "determine[s] only whether the facts
as alleged fit within any cognizable legal theory" (Gottlieb v Wynne, 159 AD3d 799, 800 [2nd
Dept 2018]).
Notwithstanding the broad pleading standard, a plaintiff's bald legal conclusions,
unsupported by factual specificity, will not withstand a motion to dismiss. See Godfrey v Spano,
13 NY3d 358, 373 [2009]. "Dismissal of the complaint is warranted if the plaintiff fails to assert
facts in support of an element of the claim, or if the factual allegations and inferences to be drawn
from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican
Grill, Inc., 29 NY3d 137, 142 [2017]).
"In a motion to dismiss pursuant to CPLR § 3211 (a) (1), the defendant has the burden of
showing that the relied-upon documentary evidence resolves all factual issues as a matter oflaw,
and conclusively disposes of the plaintiffs claim" (Fortis Fin. Servs., LLC v Fimat Futures USA,
Inc., 290 AD2d 383, 383 [1st Dept 2002] internal quotations and citations omitted). Further,
dismissal pursuant to CPLR § 321 l(a)(l) is warranted where documentary evidence
"conclusively establishes a defense to the asserted claims as a matter of law." Gottesman Co. v
A.E. W, Inc., 190 AD3d 522, 24 [1st Dept 2021].
651691/2023 Motion No. 001 Page 2 of 6
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Although defendants cite to emails as documentary evidence, this Court does not find that
those emails qualify as documentary evidence. As such, the Court looks only to the pleadings in
this action, as well as the filed responses to interrogatories in the related action (NYSCEF Doc.
47) to determine whether plaintiff's causes of action survive.
The crux of plaintiff's arguments and allegations against MLG is that it paid the
contractor defendants the entire amount of the job without authorization and to plaintiff's
detriment.
Fraud- Thirteenth Cause of Action
The Court finds that plaintiff's complaint fails to state a claim for fraud and plaintiff's
affidavit in opposition to the motion does not contain factual allegations to amplify the pleadings
with respect to this cause of action.
"To establish fraud, a plaintiff must show a misrepresentation or a material omission of
fact which was false and known to be false by [the] defendant, made for the purpose of inducing
the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or
material omission, and injury."' Ambac Assur. Corp. v Countrywide Home Loans, Inc., 151 AD3d
83 at 85 [1st Dept 2017]. Further, CPLR § 3016(b) provides that when a cause of action is based
upon fraud "the circumstances constituting the wrong shall be stated in detail."
Viewing the complaint in the light most favorable to the plaintiff and giving the plaintiff
all possible inferences, the complaint is devoid of any factual allegations to support a fraud cause
of action. The complaint alleges that misrepresentations were made, and that plaintiff relied on
them, without specific details. The complaint and the affirmation in opposition contains no
specific factual allegations as required by CPLR § 3016(b). Accordingly, plaintiff's thirteenth
cause of action against MLG is dismissed.
651691/2023 Motion No. 001 Page 3 of 6
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Breach of Fiduciary Duty- Fourteenth Cause of Action
In order to adequately plead a cause of action, plaintiff must allege the existence of a
fiduciary relationship, misconduct by the defendant and damages caused by the misconduct. See
Pokoikv Pokoik, 115 AD3d 428,429 [1st Dept 2014]. Pursuant to CPLR § 3016(b), where a
cause of action alleges breach of trust, "the circumstances constituting the wrong shall be stated
in detail".
It is clear the MLG was retained for the purpose of prosecuting the underlying insurance
litigation and the limited power of attorney explicitly provides that the authority is limited to act
on behalf of plaintiff in the property insurance claim. It is not alleged that MLG was hired to
oversee the restoration of plaintiffs home.
Here, the allegations that can be gleaned from the complaint and affidavit in opposition to
the instant motion, is that the alleged misconduct by MLG was the payment to the defendant
contractors "prematurely, unnecessarily and improperly". Further, the damages alleged are that
"the monies allocated to restore my home [ ... ] have not been so used and [ ... ] I have to pursue
legal action." See NYSCEF Doc. 30.
Assuming that there are sufficient facts alleged to deem this cause of action is properly
pled, and assuming that the allegations of prepayment can be characterized as misconduct, the
alleged damages of plaintiffs home not being restored are not damages sustained by the alleged
misconduct (see Ozimekv DiJoseph, 204 AD3d 448,449 [1st Dept 2022] citing Ulico Cas. Co. v
Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 10-11 [1st Dept 2008]). Accordingly,
plaintiffs fourteenth cause of action is dismissed.
Negligence-Fifteenth Cause of Action
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For the same reasons indicated above, plaintiff's cause of action alleging MLG as
negligent in the performance of its duties, must be dismissed. Under the more relaxed pleading
standard, the complaint still fails to allege that MLG' s conduct, negligent or otherwise, namely
payment to the contractors hired to perform services at plaintiff's home, is the proximate cause
of its injuries3 . Accordingly, it is hereby
ORDERED that the complaint is dismissed in its entirety as against defendant Merlin
Law Group, P.A.; and it is further
ORDERED that the action is severed and continued against the remaining defendants; and
it is further
ORDERED that the caption be amended to reflect the dismissal and that all future papers
filed with the court bear the amended caption; and it is further
ORDERED that counsels for the moving parties shall serve a copy of this order with notice
of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General
Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect
the change in the caption herein; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General
Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on
Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-
Filing" page on the court's website at the address www.nycourts.gov/supctmanh).
3 The Court notes that after oral argument on this motion, the parties, without leave, uploaded supplemental documents, these documents were not reviewed in deciding this motion. 651691/2023 Motion No. 001 Page 5 of 6
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1/31/2024 DATE LYLE E. FRANK, J.S.C.
~ ~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
□ DENIED □ GRANTED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
651691/2023 Motion No. 001 Page 6 of 6
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