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.
NYSCEF DOC. NO. 62 

INDEX NO. 651691/2023 

RECEIVED NYSCEF: 02/01/2024 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. LYLE E. FRANK 

Justice 

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AL YSEE DEE MINKOFF, 

Plaintiff, 

- V -

CREATIVE MANHATTAN, INC.,ANTIS CONTRACTING 

CORP., PAUL MARCOS, MERLIN LAW GROUP, P.A. 

Defendant. 

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PART 11M 

INDEX NO. 651691/2023 

MOTION DATE 07/21/2023 

MOTION SEQ. NO. 001 

DECISION + ORDER ON 

MOTION 

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 complaint1. 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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NYSCEF DOC. NO. 62 

INDEX NO. 651691/2023 

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]. 

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NYSCEF DOC. NO. 62 

INDEX NO. 651691/2023 

RECEIVED NYSCEF: 02/01/2024 

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. 

4 7) 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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NYSCEF DOC. NO. 62 

Breach of Fiduciary Duty- Fourteenth Cause of Action 

INDEX NO. 651691/2023 

RECEIVED NYSCEF: 02/01/2024 

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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NYSCEF DOC. NO. 62 

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RECEIVED NYSCEF: 02/01/2024 

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 "EFiling" 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. 

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NYSCEF DOC. NO. 62 

1/31/2024 

DATE 

CHECK ONE: 

~ CASE DISPOSED 

GRANTED □ DENIED 

APPLICATION: SETTLE ORDER 

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN 

651691/2023 Motion No. 001 

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~ 

INDEX NO. 651691/2023 

RECEIVED NYSCEF: 02/01/2024 

LYLE E. FRANK, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

□ OTHER 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

□ REFERENCE 

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