Electrotech Serv. Equip. Corp. v. Top Shelf Elec. Corp.

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2023 NY Slip Op 31264(U)

ELECTROTECH SERVICE EQUIPMENT CORPORATION, Plaintiffs, v. TOP SHELF ELECTRIC CORP. AND EULER HERMES NORTH AMERICA INSURANCE COMPANY, Defendants,

Index No. 526651/2022, Motion. Seq. #1

Supreme Court, Kings County

April 17, 2023

Unpublished Opinion

PRESENT: HON. LEON RUCHELSMAN, Judge.

DECISION AND ORDER

HON LEON RUCHELSMAN JSC

The plaintiff has moved seeking to dismiss counterclaims and affirmative defenses filed by the defendant. The defendant opposes the motion. Papers were, submitted by the parties and after reviewing all the arguments this court how makes the following determination.

The plaintiff' .and the. defendant entered into contracts whereby the plaintiff promised to supply the defendant with electrical equipment -for construction projects at 50 Hudson. Yards, in New York County and 9 Dekalb Avenue in Kings County. The plaintiff' filed a mechanic's lien alleging they are owed sums pursuant to those agreements. Further, the plaintiff commenced this action and has asserted causes of action to foreclose the mechanic's lien, breach of contract, unjust enrichment, quantum meruit, account stated and a violation of General Business Law §756-a (see, First Verified Amended Complaint [NYSCEF Doc. No. 11]). The defendant has filed an answer and alleges that in fact the plaintiff was paid for all of its services and has filed a baseless and exaggerated mechanic's. lien. In fact, the defendant asserts it overpaid the plaintiff at least $600,000 and further seeks retainage fees due to., the plaintiff's failure to provide close-out documentation. The defendant filed six counterclaims including breach of contract, unjust enrichment, conversion, wilful exaggeration of a mechanic's lien, abuse of process and specific performance based upon the allegations of overpayment and retainage fees. In addition, the defendant has asserted seventeen affirmative defenses. The plaintiff has now moved seeking to. dismiss- the counterclaims and affirmative defenses.

Conclusions of Law.

It is well settled that upon a motion to dismiss the., court must, determine, accepting the allegations of the counterclaims as true,- whether the party can succeed upon any reasonable view of those facts (Ripa v. Petrosyants, 203 A.D.3d 768, 160 N.Y.S.3d 658 [2d Dept., 2022]). Further,, all the allegations in the counterclaims are deemed true arid all reasonable inferences may be drawn in favor of the plaintiff (BT Holdings., LLC v, Village of Chester, 189 A.D.3d 754, 137 N.Y.S.2d 458 [2d Dept., 2020]). Whether the counterclaims will later survive a motion for summary judgment, or whether the defendant will ultimately be able to prove its claims, of course, plays no. part in the determination of a prediscovery CPLR §3211 motion to dismiss (see, Redwood Property Holdings, LLC v. Christopher, 211 A.D.3d 758, 1.77 NYS.3d 895 [2d Dept., 2022]).

It is well settled that to succeed upon a claim of breach of contract, the plaintiff must establish the existence of a contract, the plaintiff's performance, the defendant's breach and resulting damages (Harris v. Seward Park Housing Corn., 79 A.D.3d 425, 913 N.Y.S.2d 161 [1^st Dept., 2010]). Further, as explained in Gianelli v. RE/MAX of New York, 144 A.D.3d 861, 41 N.Y.S.3d 273 [2d Dept., 2016], "a breach of contract cause of action fails as a matter of law in the absence of any showing that a specific provision of the contract was breached" (id). The counterclaim does not provide any of the actual provisions that were allegedly breached by the plaintiff. To be sure, the breach, of contract cause of action of the First Verified Amended Complaint also fails to include the specific provisions that were breached by the defendant. In any event, the provisions of a contract must be disclosed so that the court can evaluate whether a cause of action has been alleged (Bazrkejr v. Time Warner Cable Inc.., 83 A.D.3d 750, 923 N.Y.S.2d 118 [2d Dept., 2011]). Since no such provisions are noted the motion seeking to dismiss the breach of contract counterclaim is granted.

The next counterclaim is for unjust enrichment. It is well settled that a claim of unjust enrichment is not available when it duplicates or replaces a conventional contract or tort claim (see, Corsello v. Verizon New York, Inc., 18 N.Y.3d 777, 944 N.Y.S.2d 732 [2012]). As the court noted "unjust enrichment is not a catchall cause of action to be used when others fail" (id), Since the defendant has already pled a breach of contract claim the unjust enrichment claims is duplicitive and the motion to dismiss this counterclaim is granted.. Once again., the First Verified Amended Complaint contains a cause- of action for unjust enrichment acknowledging the very same contracts between the parties. In any event since such contracts exist the motion seeking to dismiss the counterclaim for unjust enrichment is granted.

The third counterclaim is for conversion. It is well settled that to establish a claim for conversion the plaintiff must show the legal right to an identifiable item or items and that the defendant has exercised unauthorized control and ownership over the items (Giardini v. Settanni, 159 A.D.3d 874, 70 N.Y.S.3d 57 [2d. Dept., 2018]). As the Court of Appeals explained "a conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone, else, interfering with that person's right of possession. Two key elements of conversion are (1) plaintiff's possessory right or interest in the property, and (2) defendant's dominion over the property or interference with it, in derogation of plaintiff's rights" (see, Colavito v. New York Organ Donor Network Inc., 8 N.Y.3d 43, 827 N.Y.S.2d 96 [2006]). Therefore, where a defendant "interfered with plaintiff'& right to possess the property" (Hillcrest Homes, LLC v. Albion Mobile Homes, Inc., 117 A.D.3d 1434, 984 N.Y.S.2d 755 [4 ^th Dept., 2014]) a conversion has occurred. The plaintiff has adequately presented claims for conversion. Consequently, the mot ion seeking to dismiss this counterclaim is denied.

The next counterclaim alleges the wilful exaggeration of the mechanic's lien. It is well settled that whether the lien amount contained in a mechanic's lien is. exaggerated is generally a question of fact (Executive Towers at Lido LLG v. Metro Construction Services, 303 A.D.2d 545, 756 N.Y.S.2d 461 [2d Dept., 2003]). As the court stated in Aaron v. Great Bay Contracting Inc., 290 A.D.2d 326 736 N.Y.S.2d 359 [1st Dept., 2002] "the validity of the lien plainly turns on a dispute as to whether respondent has completed the work required by the contract, and, accordingly, must await trial of the foreclosure action" (id). Thus, a 'determination that a lien was willfully exaggerated generally cannot be decided summarily (s...