Opinion
1215 CA 17–00775
02-02-2018
Jeffrey D. PRESTON, Plaintiff–Respondent, v. NORTHSIDE COLLISION–DEWITT, LLC, Northside Collision–Cicero, LLC, Northside Collision–Enterprises, Inc., Northside Collision, Inc., Defendants–Appellants, et al., Defendants.
WALTER D. KOGUT, P.C., FAYETTEVILLE (WALTER D. KOGUT OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
WALTER D. KOGUT, P.C., FAYETTEVILLE (WALTER D. KOGUT OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
PRESENT: SMITH, J.P., CARNI, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Plaintiff commenced this action by asserting causes of action for, inter alia, breach of contract, negligence, fraudulent misrepresentation, and violations of General Business Law § 349 against, among others, defendants-appellants (defendants), arising from their allegedly defective repair of plaintiff's vehicle after it was damaged in a collision. Defendants moved for summary judgment dismissing the complaint against them or, in the alternative, an order striking the note of issue and compelling discovery. Supreme Court denied the motion insofar as it sought summary judgment and granted the alternative relief sought by defendants.
At the outset, we note that plaintiff opposed defendants' motion with only an attorney's affirmation with no attachments, rendering it "without evidentiary value and thus unavailing" ( Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). When a defendant has met its burden for summary judgment, "[m]ere assertions in an attorney's affidavit that sufficient proof exists to create a factual issue fail to satisfy plaintiff's burden" in opposition to the motion ( Waterman v. Yamaha Motor Corp., 184 A.D.2d 1029, 1029, 584 N.Y.S.2d 355 [4th Dept. 1992] ). Thus, to the extent that defendants established their entitlement to judgment as a matter of law, plaintiff failed to raise any triable issues of fact (see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).
Contrary to defendants' contention, the court properly denied that part of their motion seeking summary judgment dismissing the first cause of action, for breach of contract. We conclude that, based on defendants' submissions, "[q]uestions of fact and credibility exist with respect to the existence of a binding ... agreement between plaintiff and defendants, and the terms thereof, rendering summary judgment in favor of [defendants] on the first cause of action, for breach of ... contract, inappropriate" ( Sabre Intl. Sec., Ltd. v. Vulcan Capital Mgt., Inc., 95 A.D.3d 434, 436, 944 N.Y.S.2d 36 [1st Dept. 2012] ).
With respect to the second cause of action, for negligence, we agree with defendants that "[t]he gravamen of the plaintiff's complaint is that the work ‘performed under the contract was performed in a less than skillful and workmanlike manner. This states a cause of action to recover damages for breach of contract, not negligence’ " ( Gordon v. Teramo & Co., 308 A.D.2d 432, 433, 764 N.Y.S.2d 144 [2d Dept. 2003] ; see Panasuk v. Viola Park Realty, LLC, 41 A.D.3d 804, 805, 839 N.Y.S.2d 520 [2d Dept. 2007] ). Thus, the negligence cause of action against defendants must be dismissed, and we modify the order accordingly.
We also agree with defendants that they are entitled to summary judgment dismissing the third cause of action, for fraudulent misrepresentation, against them. " ‘It is well settled that a cause of action for fraud does not arise where the only fraud alleged merely relates to a party's alleged intent to breach a contractual obligation’ " ( Williams v. Coppola, 23 A.D.3d 1012, 1012, 804 N.Y.S.2d 172 [4th Dept. 2005], lv dismissed 7 N.Y.3d 741, 819 N.Y.S.2d 875, 853 N.E.2d 246 [2006] ; see Logan–Baldwin v. L.S.M. Gen. Contrs., Inc., 48 A.D.3d 1220, 1221, 851 N.Y.S.2d 327 [4th Dept. 2008] ). On this record, "far from being collateral to the contract, the purported misrepresentation was directly related to a specific provision of the contract" ( Williams, 23 A.D.3d at 1012–1013, 804 N.Y.S.2d 172 [internal quotation marks omitted] ). Consequently, plaintiff's fourth cause of action, for punitive damages based upon fraud, must be dismissed against defendants as well, inasmuch as "[a] demand or request for punitive damages is parasitic and possesses no viability absent its attachment to a substantive cause of action such as fraud" ( Rocanova v. Equitable Life Assur. Socy. of U.S., 83 N.Y.2d 603, 616, 612 N.Y.S.2d 339, 634 N.E.2d 940 [1994] ). We therefore further modify the order accordingly.
We conclude that the court erred in determining that defendants did not meet their initial burden on the motion with respect to the fifth and sixth causes of action, alleging the violation of General Business Law § 349, and we further modify the order accordingly. Defendants, as the movants, "met [their] initial burden by establishing, as a matter of law, that [their] conduct was not consumer-oriented" ( Electrical Waste Recycling Group, Ltd. v. Andela Tool & Mach., Inc., 107 A.D.3d 1627, 1630, 968 N.Y.S.2d 765 [4th Dept. 2013], lv dismissed 22 N.Y.3d 1111, 982 N.Y.S.2d 439, 5 N.E.3d 587 [2014] ). As noted above, the gravamen of plaintiff's complaint is that defendants breached a contract to repair plaintiff's vehicle, and "[p]rivate contract disputes, unique to the parties, ... [do] not fall within the ambit of the statute" ( Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 [1995] ).
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting those parts of the motion for summary judgment dismissing the second through sixth causes of action against defendants Northside Collision–Dewitt, LLC, Northside Collision–Cicero, LLC, Northside Collision–Enterprises, Inc., and Northside Collision, Inc., and as modified the order is affirmed without costs.