Opinion
524393
12-07-2017
MLB CONSTRUCTION SERVICES, LLC, Appellant, v. LAKE AVENUE PLAZA, LLC, et al., Respondents, et al., Defendants. (Action No. 1.) A.E. Rosen Electrical Co., Inc., Plaintiff, v. MLB Construction Services, LLC, Defendant and Third–Party Plaintiff–Appellant; Lake Avenue Plaza, LLC, et al., Third–Party, Defendants–Respondents. (Action No. 2.) (And Two Other Related Actions.)
Tobin & Dempf, LLP, Albany (Michael L. Costello of counsel), for appellant/defendant and third-party plaintiff-appellant. Whiteman Osterman & Hanna LLP, Albany (Christopher M. McDonald of counsel), for Lake Avenue Plaza, LLC, respondent/third-party defendant-respondent. Roemer Wallens Gold & Mineaux LLP, Albany (Earl T. Redding of counsel), for M & T Bank, respondent/third-party defendant-respondent.
Tobin & Dempf, LLP, Albany (Michael L. Costello of counsel), for appellant/defendant and third-party plaintiff-appellant.
Whiteman Osterman & Hanna LLP, Albany (Christopher M. McDonald of counsel), for Lake Avenue Plaza, LLC, respondent/third-party defendant-respondent.
Roemer Wallens Gold & Mineaux LLP, Albany (Earl T. Redding of counsel), for M & T Bank, respondent/third-party defendant-respondent.
Before: Peters, P.J., Garry, Devine, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
Aarons, J. Appeals (1) from an order of the Supreme Court (Chauvin, J.), entered July 19, 2016 in Saratoga County, which, in action No. 1, among other things, granted motions by defendants M & T Bank and Lake Avenue Plaza, LLC to dismiss the amended complaint against them, and (2) from two orders of said court, entered August 3, 2016 and August 30, 2016 in Saratoga County, which, in action No. 2, among other things, granted motions by third-party defendants to dismiss the amended third-party complaint.
MLB Construction Services, LLC and Lake Avenue Plaza, LLC entered into a construction agreement in connection with a project to construct a hotel in Saratoga County. MLB served as the general contractor and Lake Avenue was the project owner. Lake Avenue and M & T Bank entered into a business loan agreement (hereinafter the BLA) wherein M & T agreed to finance the construction project. After Lake Avenue failed to make certain payments due to MLB, MLB commenced action No. 1 against Lake Avenue and M & T, among others. Although other named defendants interposed their respective answers with counterclaims against MLB, both Lake Avenue and M & T moved via separate pre-answer motions to dismiss the complaint. Before the pre-answer motions were decided, however, MLB filed an amended complaint. Lake Avenue thereafter made another pre-answer motion to dismiss the amended complaint. In a November 2015 order, Supreme Court, among other things, partially granted Lake Avenue's motion by dismissing six claims. Supreme Court also denied M & T's pre-answer motion without prejudice to submit a new one in light of MLB's amended complaint. M & T thereafter moved to dismiss the amended complaint, as well as various "cross claims" asserted against M & T by MLB in its separate replies to the counterclaims alleged by the other named defendants. Lake Avenue cross-moved to dismiss MLB's "cross claims" asserted against it. By order entered July 19, 2016, Supreme Court granted M & T's motion and Lake Avenue's cross motion.
MLB's self-denominated "cross claims" were alleged after M & T moved to dismiss the complaint and Lake Avenue moved to dismiss the amended complaint.
In action No. 2, A.E. Rosen Electrical Co., Inc. commenced an action against MLB, alleging breach of the subcontract executed between them. MLB thereafter commenced a third-party action against M & T and Lake Avenue. Both M & T and Lake Avenue separately moved to dismiss the amended third-party complaint. By orders entered August 3, 2016 and August 30, 2016, Supreme Court, among other things, granted M & T's and Lake Avenue's motions. MLB now appeals from all three orders. We affirm.
In its appellate brief, MLB failed to address the dismissal of the Lien Law cause of action in the July 2016 order or the dismissal of the amended third-party complaint in the August 3, 2016 order and the August 30, 2016 order. Accordingly, MLB has abandoned any challenge thereto (see Casey v. State of New York, 148 A.D.3d 1370, 1372 n. 2, 51 N.Y.S.3d 203 [2017] ; CGM Constr., Inc. v. Sydor, 144 A.D.3d 1434, 1435 n., 42 N.Y.S.3d 407 [2016] ).
When assessing a CPLR 3211 motion to dismiss, "the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide [the] plaintiff the benefit of every possible inference" ( Crepin v. Fogarty, 59 A.D.3d 837, 838, 874 N.Y.S.2d 278 [2009] [internal quotation marks and citation omitted]; see Trump on the Ocean, LLC v. State of New York, 79 A.D.3d 1325, 1326, 913 N.Y.S.2d 792 [2010], lv dismissed and denied 17 N.Y.3d 770, 929 N.Y.S.2d 74, 952 N.E.2d 1067 [2011] ). A motion to dismiss under CPLR 3211(a)(1) may be granted where "the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] ; see Jenkins v. Jenkins, 145 A.D.3d 1231, 1234, 44 N.Y.S.3d 223 [2016] ).
With respect to MLB's cause of action that M & T breached the BLA, we conclude that Supreme Court properly dismissed such claim because the documentary evidence utterly refutes it. A review of the BLA confirms that MLB was not a party to it. Rather, the BLA was entered into solely between M & T and Lake Avenue. Nor does the amended complaint allege that MLB was a party to the BLA. Because MLB was a nonparty to the BLA, it cannot maintain a breach of contract cause of action against M & T (see Jacobs v. Mazzei, 112 A.D.3d 1115, 1118, 977 N.Y.S.2d 123 [2013], lv dismissed 22 N.Y.3d 1172, 985 N.Y.S.2d 472, 8 N.E.3d 850 [2014] ; Borman v. Purvis, 299 A.D.2d 615, 616, 750 N.Y.S.2d 169 [2002] ). To the extent that MLB claims third-party beneficiary status, such claim is without merit (see IMS Engrs.-Architects, P.C. v. State of New York, 51 A.D.3d 1355, 1357, 858 N.Y.S.2d 486 [2008], lv denied 11 N.Y.3d 706, 866 N.Y.S.2d 609, 896 N.E.2d 95 [2008] ; Howard Sav. Bank v. Lefcon Partnership, 209 A.D.2d 473, 476, 618 N.Y.S.2d 910 [1994], lv dismissed 86 N.Y.2d 837, 634 N.Y.S.2d 445, 658 N.E.2d 223 [1995] ; Lake Placid Club Attached Lodges v. Elizabethtown Bldrs., 131 A.D.2d 159, 161–162, 521 N.Y.S.2d 165 [1987] ).
We reject MLB's reliance on the contractor's consent. The amended complaint alleged that the execution of the BLA between M & T and Lake Avenue was induced and contingent upon MLB's execution of the contractor's consent. While MLB contends that a tripartite relationship was thus created, we disagree inasmuch as the contractor's consent specifically stated that "[MLB] acknowledges that [M & T] is obligated under the [BLA] only to [Lake Avenue] and to no other person or entity." MLB's argument that the breach of the BLA claim survives because of a functional equivalent of privity is raised for the first time on appeal and, therefore, unpreserved for our review (see Malta Props. 1, LLC v. Town of Malta, 143 A.D.3d 1142, 1144 n., 39 N.Y.S.3d 544 [2016] ; Liere v. State of New York, 123 A.D.3d 1323, 1324, 999 N.Y.S.2d 581 [2014] ).
For similar reasons, MLB's contention that M & T owed it a special duty so as to support the cause of action for negligent breach of the BLA is unpreserved. More critically, "there is no cause of action for negligent performance of a contract" ( Kyer v. Ravena–Coeymans–Selkirk Cent. Sch. Dist., 144 A.D.3d 1260, 1261, 41 N.Y.S.3d 584 [2016] [internal quotation marks and citation omitted] ). As such, the cause of action alleging that M & T negligently breached the BLA was properly dismissed.
Finally, we find no error in Supreme Court's dismissal of MLB's various "cross claims" that were alleged in MLB's separate replies to the counterclaims asserted by the other named defendants. The assertion of affirmative causes of action in a reply to a counterclaim is procedurally improper (see DeMille v. DeMille, 5 Misc.3d 355, 360–361, 784 N.Y.S.2d 296 [2004], affd as mod 32 A.D.3d 411, 820 N.Y.S.2d 111 [2006], lv dismissed 7 N.Y.3d 899, 826 N.Y.S.2d 607, 860 N.E.2d 69 [2006] ; see generally CPLR 3011 ). Accordingly, M & T's motion and Lake Avenue's cross motion to dismiss these "cross claims" were properly granted.
ORDERED that the orders are affirmed, with one bill of costs.
Peters, P.J., Garry, Devine and Clark, JJ., concur.