Opinion
17275 Index No. 654748/20 Case No. 2022-02354
02-09-2023
Hua Jun "Coco" HAN, Plaintiff-Appellant, v. Fred CHEN also known as Fred Yu-Yuet Chen etc., et al., Defendants-Respondents.
Leon I. Behar, P.C., New York (Leon I. Behar of counsel), for appellant. Meyer Suozzi English & Klein, P.C., Garden City (Daniel B. Rinaldi of counsel), for respondents.
Leon I. Behar, P.C., New York (Leon I. Behar of counsel), for appellant.
Meyer Suozzi English & Klein, P.C., Garden City (Daniel B. Rinaldi of counsel), for respondents.
Kern, J.P., Singh, Shulman, Pitt–Burke, Higgitt, JJ.
Order, Supreme Court, New York County (Joel M. Cohen, J.), entered on or about May 6, 2022, which denied plaintiff's motion for summary judgment as to liability on her claims for breaches of oral contracts to sell authentic Chinese antiques to her, refund her money after she returned the purported antiques, and to sell cemetery plots to her, unjust enrichment, and money had and received, and which dismissed defendants’ counterclaims for breaches of lease and bailment agreements, and granted defendants’ motion for partial summary judgment dismissing plaintiff's breach of contract, fraudulent inducement, unjust enrichment, and money had and received claims arising from the alleged sale of imitation antiques and cemetery plots, and her demand for punitive damages based on the fraudulent inducement claim, unanimously affirmed, without costs.
Supreme Court correctly granted summary judgment to defendants dismissing the portion of plaintiff's first breach of contract claim involving the sale of antiques and the fraudulent inducement claim, due to plaintiff's failure to proffer an expert witness under the Commercial Division rules ( 22 NYCRR 202.70, Rule 13[c]) who could opine about the authenticity of the items allegedly sold (see Thome v. Alexander & Louisa Calder Found., 70 A.D.3d 88, 98–99, 890 N.Y.S.2d 16 [1st Dept. 2009], lv denied 15 N.Y.3d 703, 2010 WL 2572017 [2010] ; Nussberg v. Tatintsian, 111 A.D.3d 441, 441, 975 N.Y.S.2d 9 [1st Dept. 2013] ). Plaintiff's resulting inability to prove the antiques and coins were inauthentic defeats her allegations of a contractual breach and that false statements were made (see Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 31 N.Y.3d 569, 578–579, 81 N.Y.S.3d 816, 106 N.E.3d 1176 [2018] [fraud]; Markov v. Katt, 176 A.D.3d 401, 401–402, 109 N.Y.S.3d 295 [1st Dept. 2019] [breach of contract]; see also Nussberg, 111 A.D.3d at 441, 975 N.Y.S.2d 9 ; Nussberg v. Tatintsian, 137 A.D.3d 521, 522–523, 27 N.Y.S.3d 133 [1st Dept. 2016], lv denied 27 N.Y.3d 909, 2016 WL 3435332 [2016] [finding the defendants’ experts should have been precluded because they did not view artwork before it was sent abroad and thus could not provide testimony in support of the defendants’ claim that the artwork acquired from the plaintiff were forgeries when they left the United States and on their return]). Since the fraudulent inducement claim was properly dismissed, plaintiff's demand for punitive damages arising from that cause of action was also properly dismissed (see Rocanova v. Equitable Life Assur. Socy. of U.S., 83 N.Y.2d 603, 613, 612 N.Y.S.2d 339, 634 N.E.2d 940 [1994] ).
Supreme Court also correctly dismissed the unjust enrichment and money had and received claims as duplicative, since "they allege underlying fraud" based on the same facts as the fraudulent inducement claim ( American Mayflower Life Ins. Co. of N.Y. v. Moskowitz, 17 A.D.3d 289, 293, 794 N.Y.S.2d 32 [1st Dept. 2005] ).
Plaintiff's breach of contract claim arising from an alleged contract to sell her funeral plots in a cemetery was properly dismissed as barred by the statute of frauds (see General Obligations Law § 5–703[2] ; Maalin Bakodesh Socy., Inc. v. Lasher, 301 A.D.2d 634, 634–635, 754 N.Y.S.2d 331 [2d Dept. 2003] ). Plaintiff failed to establish an agreement between the parties concerning the funeral plots, as she did not provide a writing that bears "the signature of the party to be charged" ( Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 55–56, 110 N.E.2d 551 [1953] ), or an unsigned writing that was "prepared by the party to be charged" ( Bent v. St. John's Univ., N.Y., 189 A.D.3d 973, 974, 138 N.Y.S.3d 199 [2d Dept. 2020], lv denied 38 N.Y.3d 904, 2022 WL 1221741 [2022] ). That the statute of frauds can be satisfied through "records of electronic communications and electronic signatures" does not obviate the need to satisfy all the "requirements of a valid memorandum" ( Naldi v. Grunberg, 80 A.D.3d 1, 12–13, 908 N.Y.S.2d 639 [1st Dept. 2010], lv denied 16 N.Y.3d 711, 2011 WL 1643544 [2011] ).
Supreme Court correctly denied plaintiff summary judgment on her claim for breach of an agreement to refund her money, and on defendants’ counterclaims for breaches of lease and bailment agreements. Contrary to plaintiff's contention, defendants raised triable issues based on their deposition testimony that all items in question were loaned for plaintiff's private use and by providing a contrasting narrative to explain the context and in-person conversations surrounding certain electronic messages sent by phone application (see De Lourdes Torres v. Jones, 26 N.Y.3d 742, 763, 27 N.Y.S.3d 468, 47 N.E.3d 747 [2016] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).