Opinion
2013-10-10
Xavier DELAGRANGE, etc., Plaintiff–Appellant, v. Francois PAYARD, Defendant–Respondent, I–T Restaurant, LLC, Defendant.
Hodgson Russ LLP, Buffalo (John L. Sinatra, Jr. of counsel), for appellant. Tarter Krinsky & Drogin LLP, New York (Linda S. Roth of counsel), for respondent.
Hodgson Russ LLP, Buffalo (John L. Sinatra, Jr. of counsel), for appellant. Tarter Krinsky & Drogin LLP, New York (Linda S. Roth of counsel), for respondent.
TOM, J.P., SWEENY, SAXE, FREEDMAN, CLARK, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered November 29, 2012, which granted defendant Payard's motion for summary judgment dismissing the complaint as against him, unanimously affirmed, with costs.
Plaintiff's claims against Payard, whether asserted individually or on behalf of In–Tent Restaurant Ltd., were correctly dismissed because there is no evidence that Payard ever acted outside the scope of his role as representative of FR Venture Inc., the managing member of In–Tent ( see Retropolis, Inc. v. 14th St. Dev. LLC, 17 A.D.3d 209, 797 N.Y.S.2d 1 [1st Dept.2005]; Mendez v. City of New York, 259 A.D.2d 441, 687 N.Y.S.2d 346 [1st Dept.1999]; see also Murtha v. Yonkers Child Care Assn., 45 N.Y.2d 913, 915, 411 N.Y.S.2d 219, 383 N.E.2d 865 [1978] ). Moreover, as to the claims brought in plaintiff's individual capacity, there is no evidence—indeed, plaintiff does not even adequately allege—that an oral contract existed between Payard and himself ( see Carlsen v. Rockefeller Ctr. N., Inc., 74 A.D.3d 608, 903 N.Y.S.2d 52 [1st Dept.2010] ) or that Payard owed him any duty independent of the duty arising from defendant I–T Restaurant LLC's operating agreement ( see MatlinPatterson ATA Holdings LLC v. Federal Express Corp., 87 A.D.3d 836, 840, 929 N.Y.S.2d 571 [1st Dept.2011], lv. denied21 N.Y.3d 853, 2013 WL 1800339 [2013] ). Plaintiff's fraud claim is both insufficiently specific and duplicative of the breach of contract claim ( seeCPLR 3016[b]; Financial Structures Ltd. v. UBS AG, 77 A.D.3d 417, 419, 909 N.Y.S.2d 45 [1st Dept.2010] ).
We have considered plaintiff's remaining arguments and find them unavailing.