PRESENT: HON. ANTHONY L. Defendants.

Transcription

1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK - COUNTY OF NASSAU PRESENT: HON. ANTHONY L. PARGA, J.S.C. DOMINICK GOLIA and GAYLE GOLIA, - against - Plaintiffs, PAMELA ROSMAN, AMERICAN KENNEL CLUB, Sequence #O&02,03 Motion Date: 1 O/ 19/00 Index # 2482/00 Part 23 Defendants. Notice of Motion to Restore to Calendar (Plaintiffs)... 1 Notice of Motion (Defendant)...2 Notice of Cross-Motion (Plaintiffs)...3 Affirmation in Opposition...4 Affidavits(Defendant)...5, 6 Reply Affirmation (Plaintiffs)...7 County Clerk s file..... Upon the foregoing papers, the motion by the plaintiffs for an order restoring to this Part s motion calendar defendant Rosman s motion for sumrnary judgment and the plaintiffs cross-motion for partial summary judgment is granted. Consequently, the motion by defendant Rosman for an order granting summary judgment in her favor is granted to the extent that the first, fourth, fifth, sixth, seventh, eighth and ninth causes of action of the complaint are dismissed pursuant to CPLR 321 l(a)(7). The cross-motion by the plaintiffs for an order granting partial summary judgment in their favor dismissing the fourth counterclaim for the return of the two Rhodesian Ridgebacks is granted to the extent that defendant Rosman s fifth counterclaim for injury to business reputation, her sixth counterclaim for punitive damages and her ninth counterclaim for emotional distress are dismissed.

2 2 Index No /99 26,2000]). The action and counterclaims at bar arise out of two contracts between the parties dated November 10, 1995, and June 29, 1997, for the co-ownership and breeding of two dogs originally owned by defendant Rosman, a male and a female Rhodesian Ridgeback. The total contract price for the two transactions appears to have been $ The plaintiffs commenced this action in New York County on July 8, 1999, due to the location of the principal office of defendant The American Kennel Club ( The AKC has apparently not answered the complaint or submitted any opposition papers to the motions at bar. No discovery has been conducted, and the Court will treat the motions at bar as motions to dismiss pursuant to CPLR 321 l(a)(7). The complaint, which has been denominated by the plaintiffs as a verified petition, purports to set forth nine causes of action. However, even after taking the allegations of the complaint as true and resolving all reasonable inferences in favor of the plaintiffs, the facts as alleged do not state viable claims as set forth in the first, fourth, fifth, sixth, seventh, eighth and ninth causes of action (see, Greater New York Inc., Fox Court Realty, Inc. v. Health Insurance Plan of _ AD2d_, 2000 N.Y. App. Div. LEXIS [2nd Dept.;Dec. The first and fourth causes of action sounding in unconscionability are dismissed as the plaintiffs have not sufficiently set forth how they were deprived of a meaningful choice pertaining to their decision to enter into either agreement, especially since there was a AKC ). An omnibus motion to change venue and to dismiss the complaint was made by defendant Rosman. The motion to change venue was granted by the Supreme Court, New York County on December 3, 1999 (Kapnick, J.); the remaining portions of the motion [were] denied with leave to renew in Supreme Court, Nassau County. Initially, none of the moving papers from New York County were transferred to this County, and duplicate originals had to be provided. oneand-one half year gap between the execution of the agreements (see, Morris v. Snappy Car

3 3 Index No /99. Rental, Inc., 2 1,30; Gillman v. Chase Manhattan Bank, 73 1, 10; Goldberg v. Moskowitz, 262 AD2d 56; Bianco v. Shareholders Communication Corp., 223 AD2d 617). The second cause of action, although inartfully drafted, adequately alleges a cause of action in breach of contract (see, Leon v. Martinez, 84 83,88; Leather v. United States Trust Co., _ AD2d _, 2001 N.Y. App. Div. LEXIS 154 [lst Dept., Jan..ll, 20011; Dye v. Catholic Med. Ctr. ofbrooklyn and Queens, Inc., 273 AD2d 193,194; compare, First Bank Richmond, S.B. v. Blue Chip Capital Corp., _ AD2d _, 2000 N.Y. App. Div. LEXIS [2nd Dept., Dec. 19, 20001). This cause of action also subsumes the plaintiffs allegation sounding in a breach of the implied covenant of good faith and fair dealing (see, Starrett Acquisition, Inc. v. Starrett Corp., 273 AD2d 12 1, 122) because the complaint alleges facts which tend to show that the defendant sought to prevent performance of the contract or to withold its benefits from the plaintiff (cf. Aventine Investment Management, Inc. v. Canadian Imperial Bank of Commerce, 265 AD2d 5 13,5 14). Furthermore, in view of this disposition, the plaintiffs third cause of action for specific performance (of the contract requiring the defendant to register a dog 1itter)will not be dismissed at this time (see, Health-Loom Corp. v. Soho Plaza Corp., 272 AD2d 179, 183; compare, Baltia AirLines, Inc. v. CIBC Oppenheimer Corp., 273 AD2d 55, 56; Hampton Navigation v. Pinpoint Sys Int., 245 AD2d 485). The fifth cause of action and the ninth counterclaim are dismissedsince there is no right of recovery for mental distress resulting from the alleged breach of a contracted related duty (Wehringer v. Standard Sec. Life Ins. Co., ,759). Furthermore, neither party has alleged sufficient facts which would state a claim for either the negligent infliction of emotional distress, i.e., conduct which unreasonably and directly endangered their physical safety (see, Albert v. Solimon, 252 AD2d 139, 141; Glendora v. Gallicano, 206 AD2d 456), or the intentional infliction of emotional distress (see, Howell v. New York Post

4 4 Index No /99 Co., ). The [parties] have failed to satisfy that requirement in this case (Gleich v. Circuit City Stores, Inc 66 permanent 541, 548). (deceptive 115; Dana v. Oak Park Marina, Inc., 230 Contemporary Shells, Inc., 160 AD2d 986). The sixth cause of action and the sixth counterclaim are dismissed because a party cannot have a separate cause of action for punitive damages (see, Assur. Secy., , ). Moreover, [t]o state a claim for an award of punitive damages as an additional and exemplary remedy when the cause of action arises from breach of contract, a [party] is required inter alia to establish that [their adversary actionable as an independent tort (see, New York Univ. v. Continental Ins. Co., 87 The seventh cause of action is dismissed as the plaintiffs have not sufficiently pleaded that they are entitled to reformation of the contract because 570, 571; Bell v. Marine Midland Banks, Inc., 230 Parenteau Assocs., Inc. v. Mut. Fire Ins. Co., 263 HMCAssocs., 225 business practices) is dismissed as the complaint essentially alleges a private contract dispute that is unique to these parties as dog owners and breeders rather than deceptive conduct that affects consumers at large (see, Stutman v. Chemical Bank, 95 24,29; Gaidon v. Guardian Life Ins. Co., 94 AD2d 874, 876). The eighth cause of action is dismissed as it does not state a cause of action for a injunction (see, Credit Agricole Indosuez v. Rossiyskiy AD2d 748,749; see, Chimart Assocs. v. Paul, AD2d 758, 759; Briand Kredit Bank, 94 The ninth cause of action, alleging a violation of General Business Law --$349 11). the writing in question was executed under mutual mistake or unilateral mistake coupled with fraud [citations omitted] (Cheperuk v. Liberty -9- AD2d _, N.Y. App. Div. LEXIS 180 AD2d 204, 212; Ruggiero v. Rocanova v. Equitable [2nd Dept., Jan. 8,200 s] conduct was 330, [dis op Bellacosa, J.]; Life

5 5 Re : Golia v. Rosman Index No /99 Kern v. First L imitations would bar any recovery based upon the Nove m ber 10, 1995 agree m CPLR 214(2); Morelli v. Weider Nutrition Group, Inc., Finally, the fifth counterclai reputation (see, MacArthur Constr. Corp. v. Coleman, 91 AD2d 906) and it appears, in any event, to be barred by the one year Statute of Li 23 on February 1, 2001, at schedule discovery. UNUMLife Ins. Co., _ AD2d, 2000 N.Y. App. Div. LEXIS D ept. Nove mber 20,2000]; Egan v. New York Care Plus Ins. Co., _ AD2d _, 2000 N.Y. App. Div. LEXIS [3rd D ept. Nove m ber 16, ZOOO]). In addition, the Statute of [2nd _ AD2d _, 712 NYS2d 551). m fails to state a cause of action for injury to business mthe itations. parties shall appear in Part 9:30 a. m. for a settle m ent and/or preli m inary conference to Da ted: January 16,200l JAN