Preview
FILED: KINGS COUNTY CLERK 02/25/2021 12:25 PM INDEX NO. 522914/2020
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/25/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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CARMEN COFRANCESCO and METRO
CONTRACTING SERVICES LLC, Index No. 522914/2020
Plaintiffs, Mot. Sequence No. 2
-against-
SD BUILDERS and CONSTRUCTION LLC, SLATE
PROPERTY GROUP LLC and DYNATEC AFFIRMATION OF
CONTRACTING INC., GREGORY O. TUTTLE IN
SUPPORT OF MOTION TO
Defendants. DISMISS
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GREGORY O. TUTTLE, an attorney admitted to practice before the Courts of the State of
New York, hereby affirms under penalty of perjury:
1. I am a partner at the law firm Tuttle Yick LLP, attorneys for defendant
Dynatec Contracting Inc. (“Dynatec”) As such, I am fully familiar with the facts and
circumstances set forth herein.
2. I submit this affirmation in support of Dynatec’s motion for an order under
CPLR §3211(a)(1) and §3211(a)(7), dismissing the Second Amended Complaint (“SAC”) with
prejudice.
3. No prior application for the relief requested herein has been previously
requested.
4. Attached as Exhibit A is a true and correct copy of the SAC filed in this
action by Plaintiffs on February 4, 2021. NYSCEF No. 12.
5. By this motion, Dynatec hereby joins in the arguments submitted by
defendants SD Builders and Construction LLC (“SD”) and Slate Property Group LLC (“Slate”)
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in their motion to dismiss the SAC (Mot. Seq No. 1, NYSCEF No. 15-22, the “Slate Motion”)).
To avoid duplicative briefing, Dynatec will not repeat the Slate Motion’s arguments in detail here.
6. But, in summary, Dynatec submits that:
a. The SAC was filed without leave of court under CPLR §3025(a). See
Slate and SD Memorandum of Law (“Slate Memo”), NYSCEF No. 16,
at Part III(A).
b. The SAC is an improper group pleading, and lumps defendants together
without providing notice as to which facts are alleged against which
defendants. Id. Part III(B).
c. The SAC’s allegation of an oral agreement is barred by the statute of
frauds. Id. Part III(C).
d. The SAC fails to allege a binding written agreement with any party. Id.
Part III(D).
e. The SAC fails to allege an account stated because Plaintiffs’ purported
accounts are comprised of invoices manufactured for litigation that, on
their face, represent disputed accounts. And in any event, the invoices
are both too vague and too late to make out an account stated claim. Id.
Part III(D)(1-3).
f. The SAC’s unjust enrichment and account stated claims are duplicative
of its contract claims. Id. Part III(D)4, III(E).
7. For all of these reasons, the Court should also dismiss the SAC against
Dynatec.
8. The Court should also dismiss the SAC against Dynatec for several
additional reasons.
No Breach of Contract
9. First, Plaintiffs lack privity with Dynatec. While the document they rely on
(SAC Ex. A) is hardly a contract (see ¶6(d), above, Slate Memo at Part III(D)) — at most it
evidences an employment agreement with Slate, not Dynatec. And Plaintiffs admit that they only
have an agreement with Slate. See, e.g., SAC ¶6 (“[Carmen Cofrancesco] was hired by Slate.”).
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There is no allegation of any agreement with Dynatec. Because Dynatec is “not party to the
contract alleged to have been breached, [the] cause of action for breach of contract must be
dismissed.” Turano v. Turano, 22 Misc. 3d 1139(A) (Sup. Ct., Queens Cnty 2009). See also Black
Car & Livery Ins., Inc. v. H & W Brokerage, Inc., 28 A.D.3d 595, 595–96 (2d Dep’t 2006) (no
breach of contract where defendant was not a party to agreements).
10. Second, there are no factual veil-piercing or alter ego allegations that can
overcome this lack of privity. Absent an agreement with Dynatec, Plaintiffs must be relying on
some theory of third-party liability. And if you squint hard enough, you can just make out
Plaintiffs’ attempt. See SAC ¶14 (“Upon information and belief, Defendants are interrelated and
act as partners or through a joint venture for all of the subject projects and were all responsible for
payment of the bonuses to Plaintiffs, making all Defendants jointly and severally liable.”). But
this is nowhere near enough.
11. To plead a veil-piercing claim, plaintiff must allege specific, non-
conclusory facts establishing that a court in equity should intervene because the nonparty (i)
exercised complete domination over it in the transaction at issue and, (ii) in doing so, abused the
privilege of doing business in the corporate form, thereby perpetrating a wrong that injured the
plaintiff. Matter of Morris v. New York State Dept. of Taxation & Fin., 82 N.Y.2d 135, 140–141
(1993). Plaintiffs’ vague and conclusory allegation of “interrelated[ness]” does not meet this
burden. And New York courts routinely dismiss complaints, like the SAC, “totally devoid of solid,
nonconclusory allegations” justifying alter ego liability. Perez v. One Clark St. Hous. Corp., 108
A.D.2d 844, 845 (2d Dep’t 1985). See also Cusumano v. Iota Indus., Inc., 100 A.D.2d 892, 893
(2d Dep’t 1984) (reversing trial court; complaint “merely contain[ing] conclusory statements” that
nonparty was alter ego of signatory is insufficient and should be dismissed); Goldman v. Chapman,
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44 A.D.3d 938, 939 (2d Dep’t 2007) (Plaintiff must plead specific “facts and circumstances” to
justify equitable relief of veil piercing).
No Account Stated
12. Plaintiffs’ account stated claim against Dynatec fails for the same reasons.
Though Plaintiffs (for some reason) addressed its untimely and disputed invoices to Dynatec, in
addition to Slate and SD, “an account stated assume the existence of some indebtedness between
the parties, or an express agreement to treat the statement as an account stated. It cannot be used
to create liability where none otherwise exists.” M. Paladino, Inc. v. J. Lucchese & Son
Contracting Corp., 247 A.D.2d 515, 516 (2d Dep’t 1998). Again, Plaintiffs allege at most that
Slate, not Dynatec, entered into some kind of employment agreement with them. Because Plaintiffs
do not even allege a debt from, or agreement to pay with, Dynatec, they have not stated a claim
for an account stated.
No Unjust Enrichment
13. As to Plaintiffs’ unjust enrichment claim, Plaintiffs must plead “that (1) the
other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good
conscience to permit [the other party] to retain what is sought to be recovered.” Georgia Malone
& Co. v. Rieder, 86 A.D.3d 406, 411 (1st Dep’t 2011), aff'd, 19 N.Y.3d 511 (2012). All Plaintiffs
say is “part of construction cost savings was shifted to Dynatec toward [sic] its role in the
construction process, which caused greater profitability to Dynatec and in turn to SD, and CC was
entitled to receive 10% of the net ‘buy out savings’ from Dynatec and SD as well.” SAC ¶13.
14. This allegation is indecipherable. Plaintiffs offer no explanation of how or
why Dynatec was enriched based on “construction cost savings,” how or why this was at Plaintiffs’
expense, or how or why it would be inequitable for Dynatec to retain such enrichment (or even
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what this enrichment was). Plaintiffs don’t even explain what the quoted term net “buy out
savings” refers to. In sum, the SAC’s word salad does not even fulfill the “primary function of a
pleading[,] .. .to apprise an adverse party of the pleader’s claim and to prevent surprise” so a
defendant can “prepare a defense to the plaintiff’s allegations.” Cole v. Mandell Food Stores, Inc.,
93 N.Y.2d 34, 40 (1999).
15. For the reasons set forth above, and in the Slate Motion, which Dynatec
joins in its entirety, I respectfully request that the Court dismiss the SAC with prejudice as to
Dynatec.
Dated: New York, New York
February 25, 2021
___/s/ Gregory O. Tuttle
Gregory O. Tuttle
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Certification of Rule 202.8-b(c) Word Count Compliance
The counsel below for Defendant Dynatec certifies that, according to Microsoft Word, this
Affirmation contains 1,189 words, excluding the caption and signature block.
/s/ Gregory O. Tuttle
Gregory O. Tuttle
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Preview
FILED: KINGS COUNTY CLERK 02/25/2021 12:25 PM INDEX NO. 522914/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/25/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------x CARMEN COFRANCESCO and METRO CONTRACTING SERVICES LLC, Index No. 522914/2020 Plaintiffs, Mot. Sequence No. 2 -against- SD BUILDERS and CONSTRUCTION LLC, SLATE PROPERTY GROUP LLC and DYNATEC AFFIRMATION OF CONTRACTING INC., GREGORY O. TUTTLE IN SUPPORT OF MOTION TO Defendants. DISMISS ---------------------------------------------------------------------x GREGORY O. TUTTLE, an attorney admitted to practice before the Courts of the State of New York, hereby affirms under penalty of perjury: 1. I am a partner at the law firm Tuttle Yick LLP, attorneys for defendant Dynatec Contracting Inc. (“Dynatec”) As such, I am fully familiar with the facts and circumstances set forth herein. 2. I submit this affirmation in support of Dynatec’s motion for an order under CPLR §3211(a)(1) and §3211(a)(7), dismissing the Second Amended Complaint (“SAC”) with prejudice. 3. No prior application for the relief requested herein has been previously requested. 4. Attached as Exhibit A is a true and correct copy of the SAC filed in this action by Plaintiffs on February 4, 2021. NYSCEF No. 12. 5. By this motion, Dynatec hereby joins in the arguments submitted by defendants SD Builders and Construction LLC (“SD”) and Slate Property Group LLC (“Slate”) 1 of 6 FILED: KINGS COUNTY CLERK 02/25/2021 12:25 PM INDEX NO. 522914/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/25/2021 in their motion to dismiss the SAC (Mot. Seq No. 1, NYSCEF No. 15-22, the “Slate Motion”)). To avoid duplicative briefing, Dynatec will not repeat the Slate Motion’s arguments in detail here. 6. But, in summary, Dynatec submits that: a. The SAC was filed without leave of court under CPLR §3025(a). See Slate and SD Memorandum of Law (“Slate Memo”), NYSCEF No. 16, at Part III(A). b. The SAC is an improper group pleading, and lumps defendants together without providing notice as to which facts are alleged against which defendants. Id. Part III(B). c. The SAC’s allegation of an oral agreement is barred by the statute of frauds. Id. Part III(C). d. The SAC fails to allege a binding written agreement with any party. Id. Part III(D). e. The SAC fails to allege an account stated because Plaintiffs’ purported accounts are comprised of invoices manufactured for litigation that, on their face, represent disputed accounts. And in any event, the invoices are both too vague and too late to make out an account stated claim. Id. Part III(D)(1-3). f. The SAC’s unjust enrichment and account stated claims are duplicative of its contract claims. Id. Part III(D)4, III(E). 7. For all of these reasons, the Court should also dismiss the SAC against Dynatec. 8. The Court should also dismiss the SAC against Dynatec for several additional reasons. No Breach of Contract 9. First, Plaintiffs lack privity with Dynatec. While the document they rely on (SAC Ex. A) is hardly a contract (see ¶6(d), above, Slate Memo at Part III(D)) — at most it evidences an employment agreement with Slate, not Dynatec. And Plaintiffs admit that they only have an agreement with Slate. See, e.g., SAC ¶6 (“[Carmen Cofrancesco] was hired by Slate.”). 2 of 6 FILED: KINGS COUNTY CLERK 02/25/2021 12:25 PM INDEX NO. 522914/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/25/2021 There is no allegation of any agreement with Dynatec. Because Dynatec is “not party to the contract alleged to have been breached, [the] cause of action for breach of contract must be dismissed.” Turano v. Turano, 22 Misc. 3d 1139(A) (Sup. Ct., Queens Cnty 2009). See also Black Car & Livery Ins., Inc. v. H & W Brokerage, Inc., 28 A.D.3d 595, 595–96 (2d Dep’t 2006) (no breach of contract where defendant was not a party to agreements). 10. Second, there are no factual veil-piercing or alter ego allegations that can overcome this lack of privity. Absent an agreement with Dynatec, Plaintiffs must be relying on some theory of third-party liability. And if you squint hard enough, you can just make out Plaintiffs’ attempt. See SAC ¶14 (“Upon information and belief, Defendants are interrelated and act as partners or through a joint venture for all of the subject projects and were all responsible for payment of the bonuses to Plaintiffs, making all Defendants jointly and severally liable.”). But this is nowhere near enough. 11. To plead a veil-piercing claim, plaintiff must allege specific, non- conclusory facts establishing that a court in equity should intervene because the nonparty (i) exercised complete domination over it in the transaction at issue and, (ii) in doing so, abused the privilege of doing business in the corporate form, thereby perpetrating a wrong that injured the plaintiff. Matter of Morris v. New York State Dept. of Taxation & Fin., 82 N.Y.2d 135, 140–141 (1993). Plaintiffs’ vague and conclusory allegation of “interrelated[ness]” does not meet this burden. And New York courts routinely dismiss complaints, like the SAC, “totally devoid of solid, nonconclusory allegations” justifying alter ego liability. Perez v. One Clark St. Hous. Corp., 108 A.D.2d 844, 845 (2d Dep’t 1985). See also Cusumano v. Iota Indus., Inc., 100 A.D.2d 892, 893 (2d Dep’t 1984) (reversing trial court; complaint “merely contain[ing] conclusory statements” that nonparty was alter ego of signatory is insufficient and should be dismissed); Goldman v. Chapman, 3 of 6 FILED: KINGS COUNTY CLERK 02/25/2021 12:25 PM INDEX NO. 522914/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/25/2021 44 A.D.3d 938, 939 (2d Dep’t 2007) (Plaintiff must plead specific “facts and circumstances” to justify equitable relief of veil piercing). No Account Stated 12. Plaintiffs’ account stated claim against Dynatec fails for the same reasons. Though Plaintiffs (for some reason) addressed its untimely and disputed invoices to Dynatec, in addition to Slate and SD, “an account stated assume the existence of some indebtedness between the parties, or an express agreement to treat the statement as an account stated. It cannot be used to create liability where none otherwise exists.” M. Paladino, Inc. v. J. Lucchese & Son Contracting Corp., 247 A.D.2d 515, 516 (2d Dep’t 1998). Again, Plaintiffs allege at most that Slate, not Dynatec, entered into some kind of employment agreement with them. Because Plaintiffs do not even allege a debt from, or agreement to pay with, Dynatec, they have not stated a claim for an account stated. No Unjust Enrichment 13. As to Plaintiffs’ unjust enrichment claim, Plaintiffs must plead “that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered.” Georgia Malone & Co. v. Rieder, 86 A.D.3d 406, 411 (1st Dep’t 2011), aff'd, 19 N.Y.3d 511 (2012). All Plaintiffs say is “part of construction cost savings was shifted to Dynatec toward [sic] its role in the construction process, which caused greater profitability to Dynatec and in turn to SD, and CC was entitled to receive 10% of the net ‘buy out savings’ from Dynatec and SD as well.” SAC ¶13. 14. This allegation is indecipherable. Plaintiffs offer no explanation of how or why Dynatec was enriched based on “construction cost savings,” how or why this was at Plaintiffs’ expense, or how or why it would be inequitable for Dynatec to retain such enrichment (or even 4 of 6 FILED: KINGS COUNTY CLERK 02/25/2021 12:25 PM INDEX NO. 522914/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/25/2021 what this enrichment was). Plaintiffs don’t even explain what the quoted term net “buy out savings” refers to. In sum, the SAC’s word salad does not even fulfill the “primary function of a pleading[,] .. .to apprise an adverse party of the pleader’s claim and to prevent surprise” so a defendant can “prepare a defense to the plaintiff’s allegations.” Cole v. Mandell Food Stores, Inc., 93 N.Y.2d 34, 40 (1999). 15. For the reasons set forth above, and in the Slate Motion, which Dynatec joins in its entirety, I respectfully request that the Court dismiss the SAC with prejudice as to Dynatec. Dated: New York, New York February 25, 2021 ___/s/ Gregory O. Tuttle Gregory O. Tuttle 5 of 6 FILED: KINGS COUNTY CLERK 02/25/2021 12:25 PM INDEX NO. 522914/2020 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 02/25/2021 Certification of Rule 202.8-b(c) Word Count Compliance The counsel below for Defendant Dynatec certifies that, according to Microsoft Word, this Affirmation contains 1,189 words, excluding the caption and signature block. /s/ Gregory O. Tuttle Gregory O. Tuttle 6 of 6