Sutherland v. Fitzpatrick

2020 NY Slip Op 30029(U)

BRIAN SUTHERLAND, Plaintiff, v. PHILIP J. FITZPATRICK and PHILIP J. FITZPATRICK, P.C., Defendants.

Index No.: 2090/2018

New York Supreme Court

FILED: January 6, 2020

RECEIVED: January 7, 2020

January 2, 2020

NYSCEF DOC. NO. 50

At an IAS Term, Part 34 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse thereof at 360 Adams St., Brooklyn, New York on the 2^nd day of January 2020.

PRESENT: HON. LARA J. GENOVESI, J.S.C.

DECISION & ORDER

MS # 2

Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:

NYSCEF Doc. No.:

Notice of Motion/Cross Motion/Order to Show Cause and

Affidavits (Affirmations) Annexed

5 - 29

Opposing Affidavits (Affirmations)

31 - 45

Reply Affidavits (Affirmations)

46-47

Introduction

Defendants, Philip J. Fitzpatrick and Philip J. Fitzpatrick, P.C., move by notice of motion, sequence number two, pursuant to CPLR § 3211(a)(1) and (7) to dismiss plaintiff's second amended complaint; (2) directing the clerk to enter judgment in favor of defendants; (3) awarding costs of this motion to defendant; and (4) for such other and further relief as the court deems just and proper. Plaintiff, Brian Sutherland, opposes this motion.

Background & Procedural History

This action arises from plaintiff's purchase of the premises at 4029 Hylan Boulevard, Staten Island, New York, a restaurant/tavern formerly known as the Dugout South. Plaintiff, through Access Unlimited Corporation, purchased the property from Let the Good Times Roll, LLC (the seller). In this transaction, plaintiff was represented by a James D. Bonamassa, Esq. Defendant, Brian Sutherland, represented the seller.

Plaintiff understood the restaurant to have both an indoor and outdoor bar in the patio area. However, the outdoor "Tiki Bar" on the patio was not operating at the time of the negotiations. Plaintiff stated that in the spring of 2015, the seller told him that the outdoor bar was temporarily closed due to a property line dispute with the attorney's office, located adjacent to the premises. According to plaintiff, this was confirmed by defendant. Plaintiff believed that the outdoor bar could resume operations once it was properly permitted (see NYSCEF Doc. # 32, Plaintiff's Affidavit in Opposition at ¶¶ 11-13).

After numerous visits to the location, plaintiff executed an agreement on June 23, 2016, to purchase the premises for $325,000.00. This agreement was contingent upon approval of a Liquor License. The seller represented that the premises had liquor licenses #1255966 and #1255967, which expired July 31, 2015. Plaintiff retained defendants, who had previously represented the seller in the purchase of the property, to assist in applying for a New York State Liquor License for the premises. An application was submitted to the New York State Liquor Authority on July 21, 2015, seeking to license the first and second floors, as well as the patio area. A temporary retail permit was issued on July 24, 2015. The parties closed on the property on August 17, 2015, and plaintiff began operating the premises as Joe Broadway Sports Pub the following month.

On September 6, 2015 and September 9, 2015, complaints were filed by the community board regarding plaintiff's use of the outdoor bar and patio area of the premises. On September 24, 2015, defendant submitted a letter to the Community Board, with an amended application, stating that plaintiff was withdrawing the portion of its application for a liquor license for the patio area. On October 8, 2015, the Community Board withdrew its objections to the liquor license application. On November 9, 2015, liquor license #1287661 was issued to the premises for the indoor areas.

As a result of Sutherlands failure to pay the balance due under the promissory note by February 2016, the seller commenced an action against plaintiff in Supreme Court, Richmond County, under index number 150253/2016. In that action, Sutherland asserted a counterclaim alleging that the seller made false representations about the premises' use of the outdoor patio and whether they were licensed to serve alcohol on the patio.

Sutherland, the plaintiff herein, commenced the instant action by filing a summons and complaint on August 17, 2018.¹ In this action plaintiff is suing his former attorney Fitzpatrick, individually as well as his professional practice, who was hired to help obtain liquor licenses for the property and patio. Plaintiff alleges that Fitzpatrick misrepresented his ability to obtain a liquor license for the entire premises, inclusive of the patio area. Plaintiff maintains that their failure to maintain a liquor license for the patio lead to the ultimate failure of the business and loss of investment money.

Defendant moves herein to dismiss plaintiff's Second Amended Verified Complaint and all other claims asserted against defendants. In the Second Amended Verified Complaint, plaintiff alleges the following causes of action: (1) Fraudulent Inducement and Concealment; (2) Deceptive Business Practices; (3) Breach of Fiduciary Duty; (4) Unjust Enrichment; (5) Negligence; (6) Breach of Contract; and (7) Breach of Implied Covenant of Good Faith and Fair Dealing (see NYSCEF Doc. # 12). In their motion, defendants move to dismiss all of these causes of action, as well as a claim for legal malpractice. This Court notes that in plaintiff's original complaint, he asserted a cause of action for legal malpractice (see NYSCEF Doc. # 1). In his affirmation in opposition, plaintiff addressed the following branches of defendants' motion to dismiss plaintiff's second amended complaint: (1) Fraudulent Inducement and Concealment; (2) Deceptive Business Practices; (3) Breach of Fiduciary Duty; (4) Unjust Enrichment; (5) Negligence and (6) Legal Malpractice. This Court notes that plaintiff did not address the sixth and seventh causes of action for Breach of Contract and Breach of Implied Covenant of Good Faith and Fair Dealing.

Discussion

Defendants move herein pursuant to CPLR § 3211(a)(1) and (7) to dismiss plaintiffs second amended complaint, based on documentary evidence or that the pleading fails to state a cause of action. "A motion pursuant to CPLR 3211(a)(1) to dismiss based on documentary evidence may be appropriately granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law" (Stone v. Bloomberg L.P., 163 A.D.3d 1028, 83 N.Y.S.3d 78 [2 Dept., 2018], quoting Feldshteyn v. Brighton Beach 2012, LLC, 153 A.D.3d 670, 61 N.Y.S.3d 60 [2 Dept., 2017]; see also Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 746 N.Y.S.2d 858 [2002]). "If the evidence submitted in support of the motion is not 'documentary,' the motion must be denied" (Phillips v. Taco Bell Corp., 152 A.D.3d 806, 60 N.Y.S.3d 67 [2 Dept., 2017], citing Prott v. Lewin & Baglio, LLP, 150 A.D.3d 908, 55 N.Y.S.3d 98 [2 Dept., 2017]).

"To constitute 'documentary' evidence, the evidence must be 'unambiguous, authentic, and undeniable' such as judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable [internal citations and quotations marks omitted]" (Karpovich v. City of New York, 162 A.D.3d 996, 80 N.Y.S.3d 364 [2 Dept., 2018], quoting Granada Condo. III Ass'n v. Palomino, 78 A.D.3d 996, 913 N.Y.S.2d 668 [2 Dept., 2010]; see also Phillips v. Taco Bell Corp., 152 A.D.3d 806, supra).

"When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" (Bennett v. State Farm Fire & Cas. Co., 161 A.D.3d 926, 78 N.Y.S.3d 169 [2 Dept., 2018], quoting Sokol v Leader, 74 A.D.3d 1180, 904 N.Y.S.2d 153 [2 Dept., 2010]). "[T]he pleading must be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory" (Trump Vill. Section 4, Inc. v. Bezvoleva, 161 A.D.3d 916, 78 N.Y.S.3d 129 [2 Dept., 2018], citing Leon v Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972 [1994]; see also Mirro v. City of New York, 159 A.D.3d 964, 74 N.Y.S.3d 356 [2 Dept., 2018]). "[T]he sole criterion is whether factual allegations are discerned from the four corners of the complaint which, taken together, manifest any cause of action cognizable at law" (Law Offices of Thomas F. Liotti v. Felix, 129 A.D.3d 783, 9 N.Y.S.3d 888 [2 Dept., 2015], citing Cohen v. Kings Point Tenant Corporation, 126 A.D.3d 843, 6 N.Y.S.3d 93 [2 Dept., 2015]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus" (Trump Vill. Section 4, Inc. v. Bezvoleva, 161 A.D.3d 916, supra, quoting EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 799 N.Y.S.2d 170 [2005]).

"In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims" (Garcia v. Polsky, Shouldice & Rosen, P.C., 161 A.D.3d 828, 77 N.Y.S.3d 424 [2 Dept., 2018], quoting Cron v. Hargro Fabrics, 91 N.Y.2d 362, 670 N.Y.S.2d 973 [1998]; see also Rad & D'Aprile, Inc. v. Arnell Constr. Corp., 159 A.D.3d 971, 74 N.Y.S.3d 266 [2 Dept., 2018]). "A motion to dismiss merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party's cause of action" (Kaplan v. New York City Dep't of Health & Mental Hygiene, 142 A.D.3d 1050, 38 N.Y.S.3d 563 [2 Dept., 2016]).

First Cause of Action: Fraudulent Inducement and Concealment

Defendants contend that plaintiff failed to sufficiently plead a cause of action for fraudulent inducement in the second amended complaint. "To state a [cause of action to recover...