| Archstone Dev. LLC v Renval Constr. LLC |
| 2017 NY Slip Op 08492 |
| Decided on December 5, 2017 |
| 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 December 5, 2017
Richter, J.P., Manzanet-Daniels, Andrias, Kern, Singh, JJ.
5144 654491/16
v
Renval Construction LLC, et al., Defendants-Respondents.
Novack Burnbaum Crystal LLP, New York (Howard C. Crystal of counsel), for appellant.
Kushnick Pallaci PLLC, Bohemia (Adam S. Cohen of counsel), for respondents.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered February 10, 2017, which granted defendants' CPLR 3211 motion to dismiss the complaint, unanimously affirmed, without costs.
The motion court correctly dismissed the causes of action for fraudulent inducement as duplicative of the breach of contract claim (see generally Clark—Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]). Plaintiff's allegation that defendants misrepresented their intent to use a deposit to engage subcontractors amounts to allegations of an insincere promise of future performance under the contract, which is insufficient to plead fraud (see Cronos Group Ltd. v XComIP, LLC, — AD3d &mdash, 2017 NY Slip Op 06515 [1st Dept 2017]; Castellotti v Free, 138 AD3d 198, 211 [1st Dept 2016]). The claim based on allegations of post-contract misrepresentations is similarly duplicative of the breach of contract claim (Clark—Fitzpatrick, 70 NY2d at 389).
The motion court correctly dismissed the breach of contract claim on the ground that plaintiff failed to satisfy a condition precedent required for bringing suit. Although plaintiff timely filed a notice of claim with the initial decision maker under § 15.1.2 of the AIA A201—2007 form agreement (construction agreement), it did not pursue mediation as required by § 15.3.1 (see MCC Dev. Corp. v Perla, 81 AD3d 474, 475 [1st Dept 2011], lv denied 17 NY3d 715 [2011]). Plaintiff's contention that it was not required to comply with the condition precedent because the agreement giving rise to the deposit was separate and distinct from the construction agreement is unavailing. As the construction agreement governs costs and payment for work performed, which included the 10% deposit, the negotiations and agreement giving rise to the deposit have been superseded by the construction agreement pursuant to the latter agreement's merger clause (see Matter of Primex Intl. Corp. v Wal-Mart Stores, 89 NY2d 594, 599-600 [1997]; Garthon Bus. Inc. v Kirill Ace Stein, 138 AD3d 587, 591-592 [1st Dept 2016], appeal dismissed 27 NY3d 1182 [2016]).
The motion court correctly rejected plaintiff's claim of a mutual termination, in light of emails clearly showing a unilateral termination.
Although the motion court erroneously relied on an inapplicable contract provision in dismissing the breach of fiduciary duty claim, the claim should still be dismissed as duplicative [*2]of the breach of contract claim (Clark—Fitzpatrick, 70 NY2d at 389; Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 600 [1st Dept 2014]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 5, 2017
CLERK