### 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 NEWYORK COUNTY PRESENT: HON. LYLE E. FRANK Justice

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ALYSEE DEE MINKOFF, Plaintiff,

- V - CREATIVE MANHATTAN, INC.,ANTIS CONTRACTING CORP., PAUL MARCOS, MERLIN LAW GROUP, P.A. Defendant.

---------------------------------------------------------------------------------X 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 ofan alleged breach ofcontract. Defendant Merlin Law Group, P.A. ("MLG"), moves, pursuantto CPLR § 321 l(a)(l) and (a)(7), to dismiss the thirteenth, fourteenth and fifteenth causes ofaction in the complaint1

. 

### Plaintiffopposes the instantmotion. For the reasons set forth below, defendant's motion is granted2

. Background 

### MLG is a law firm that previouslyrepresented plaintiffin 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 ofallegations 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. Plaintiffhired MLG

1 These are the only causes ofaction alleged against MLG. 2 The Court would like to thank Lillian Garber for her assistance in this matter.

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### to represent her in the underlying action and granted it a limited power ofattorney. Plaintiff contends that MLG exceeded its authoritybypaying the construction defendants in excess ofthe amounts earned and owed. Discussion 

### Forthe purposes ofthis motion, the court accepts the allegations in the complaintas true and interprets the complaint liberally (seeAlden, 

### 159 AD3d at 621-622). Moreover, itgives plaintiff"the benefit ofevery ... favorable inference" and "determine[s] only whetherthe 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 ofthe complaint is warranted ifthe plaintifffails to assert facts in support ofan element ofthe claim, orifthe factual allegations and inferences to be drawn from them do not allow for an enforceable right ofrecovery" (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 amatter oflaw, and conclusively disposes ofthe plaintiffs claim" (Fortis Fin. Servs., LLC vFimatFutures USA, Inc., 

### 290 AD2d 383, 383 [1st Dept 2002] internal quotations and citations omitted). Further, dismissal pursuantto CPLR 

### § 321 l(a)(l) is warranted where documentary evidence "conclusively establishes a defense to the asserted claims as a matter oflaw." Gottesman Co. v A.E. W, Inc., 

### 190 AD3d 522, 24 [1st Dept 2021].

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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 ofaction survive. The crux ofplaintiff's arguments and allegations against MLGis that it paid the contractor defendants the entire amount ofthejob without authorization and to plaintiff's detriment. Fraud- Thirteenth Cause ofAction 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 ofaction. "To establish fraud, a plaintiffmust show a misrepresentation or a material omission of fact which was false and known to be false by [the] defendant, made for the purpose ofinducing the other party to rely upon it, justifiable reliance ofthe other party on the misrepresentation or material omission, and injury."'AmbacAssur. Corp. v CountrywideHomeLoans, Inc., 

### 151 AD3d 83 at 85 [1st Dept 2017]. Further, CPLR § 

### 3016(b) provides that when a cause ofaction is based upon fraud "the circumstances constituting the wrong shall be stated in detail." Viewing the complaint in the light most favorable to the plaintiffand giving the plaintiff all possible inferences, the complaint is devoid ofany factual allegations to support a fraud cause ofaction. The complaint alleges that misrepresentations were made, and thatplaintiffrelied 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 ofaction against MLG is dismissed.

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Breach ofFiduciary Duty- Fourteenth Cause ofAction INDEX NO. 651691/2023 RECEIVED NYSCEF: 02/01/2024

In order to adequately plead a cause ofaction, plaintiffmust allege the existence ofa fiduciary relationship, misconduct bythe defendant and damages causedby the misconduct. See PokoikvPokoik, 115 AD3d428,429 [1st Dept 2014]. Pursuant to CPLR § 3016(b), where a cause ofaction alleges breach oftrust, "the circumstances constituting the wrong shall be stated in detail". Itis clear the MLG was retained for the purpose ofprosecuting the underlying insurance litigation and the limitedpower ofattorney explicitly provides that the authority is limited to act on behalfofplaintiffin the propertyinsurance claim. Itis not alleged that MLG was hired to oversee the restoration ofplaintiffs home. Here, the allegations that can be gleaned from the complaint and affidavit in opposition to the instantmotion, is that the allegedmisconductbyMLG was the paymentto the defendant contractors "prematurely, unnecessarily and improperly". Further, the damages alleged are that "the monies allocated to restore my home [...] have notbeen so used and [...] I have to pursue legal action." See NYSCEF Doc. 30. Assuming that there are sufficient facts alleged to deem this cause ofaction is properly pled, and assuming that the allegations ofprepayment can be characterized as misconduct, the alleged damages ofplaintiffs home not being restored are not damages sustained by the alleged misconduct (see OzimekvDiJoseph, 204 AD3d448,449 [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 ofaction is dismissed. Negligence-Fifteenth Cause ofAction

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Forthe same reasons indicated above, plaintiff's cause ofaction alleging MLG as negligent in the performance ofits duties, must be dismissed. Under the more relaxed pleading standard, the complaint still fails to allege thatMLG's conduct, negligent or otherwise, namely payment to the contractors hired to perform services at plaintiff's home, is the proximate cause ofits 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 courtbearthe amended caption; and it is further ORDERED that counsels for the movingparties shall serve a copy ofthis orderwithnotice ofentry upon the Clerk ofthe Court (60 Centre Street, Room 141B) and the Clerk ofthe General Clerk's Office (60 Centre Street, Room 119), who are directedto markthe court'srecords toreflect the change in the caption herein; and it is further ORDERED that such service upon the Clerk ofthe Court and the Clerk ofthe General Clerk's Office shall be made in accordance with the procedures set forth in the 

### Protocol on Courthouse and County Clerk Proceduresfor 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 onthis motion, the parties, without leave, uploaded supplemental documents, these documents were not reviewed in deciding this motion.

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1/31/2024

DATE CHECK ONE:

# ~ CASE DISPOSED GRANTED**□** DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN

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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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