Motion for Writ in Army Construction Llc v. National Door & Hardware Inc., Mario Gonzalez, Martin Blum, Mark Molinuevo, Nelson A. Almonte| Trellis.Law

On January 16, 2024 a Motion-Secondary was filed involving a dispute between Army Construction Llc, and Mario Gonzalez, Mark Molinuevo, Martin Blum, National Door & Hardware Inc., Nelson A. Almonte, for Commercial - Contract in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 03/28/2024 10:00 AM INDEX NO. 650218/2024
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ARMY CONSTRUCTION LLC Index No. 650218/2024

Plaintiffs, Mot. Seq. No. 1

-against-

NATIONAL DOOR & HARDWARE INC.,
MARIO GONZALEZ, MARTIN BLUM,
MARK MOLINUEVO, and NELSON A. ALMONTE,

Defendants.
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PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION
TO DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT IN ITS ENTIRETY

KAUFMAN DOLOWICH LLP
Attorneys for Plaintiff
135 Crossways Park Drive, Suite 201
Woodbury, New York 11797
Phone: (516) 681-1100

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii

PRELIMINARY STATEMENT .....................................................................................................1

STATEMENT OF FACTS ..............................................................................................................4

ARGUMENT ...................................................................................................................................4

STANDARD OF REVIEW .............................................................................................................4

POINT I ...........................................................................................................................................5

PLAINTIFF ADEQUATELY PLEADS THAT DEFENDANTS
BREACHED THE NATIONAL DOOR AGREEMENT ....................................................5

A. Plaintiff Adequately Alleges That Defendants
Breached the National Door Agreement ............................................................................. 5

B. Defendants are Responsible for Plaintiff’s General Damages Naturally
Flowing From Defendants’ Refusal to Complete Their Work, Furnishing the
Unapproved Doors, Defaulting and Finally Being Terminated ......................................7

POINT II ..........................................................................................................................................8

PLAINTIFF ADEQUATLEY PLEADS TORTIOUS INTERFERENCE
WITH BUSIENSS RELATIONSHIP..................................................................................8

POINT III .......................................................................................................................................10

PLAINTIFF ADEQUETLY PLEADS FRAUD AGAINST
THE DEFENDANTS ........................................................................................................10

CONCLUSION ..............................................................................................................................13

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TABLE OF AUTHORITIES

Cases Pages

AG Capital Funding Partners, L.P. v. State Street Bank and Trust Co.,
5 N.Y.3d 582 (2005) ........................................................................................................................4

American List Corp. v. U.S. News & World Report,
75 N.Y.2d 38 (1989) ........................................................................................................................8

Black v. Chittenden,
69 N.Y.2d 665, N.Y.S.2d 833(1986) .............................................................................................11

Braddock v. Braddock,
60 A.D.3d 84, N.Y.S.2d 68 (1st Dept. 2009).................................................................................11

Carvel Corp. v. Noonan,
3 N.Y.3d 182,785 N.Y.S.2d 359,(2004) ..........................................................................................8

Catskill Dev., L.L.C. v. Park Place Entm’t Corp.,
547 F.3d 115 (2d Cir.2008)..............................................................................................................8

Chappo & Co., Inc. v. Ion Geophysical Corp.,
83 A.D.2d 499 (1st Dept. 2011)........................................................................................................9

DDJ Mgt., LLC v. Rhone Group L.L.C.,
15 N.Y.3d 147, N.Y.S.2d 118(2010) .............................................................................................11

Global Mins. & Metals Corp. v. Holme,
35 A.D.3d 93, N.Y.S.2d 210 (1st Dept. 2006),
lv. denied 8 N.Y.3d 804, N.Y.S.2d 106 (2007) ............................................................................11

Gonzalez v. 40 West Burnside Avenue LLC,
107 A.D. 3d 542 (1st Dept. 2013)...................................................................................................10

Guggenheimer v. Ginzburg,
43 N.Y.2d. 268(1977) ......................................................................................................................4

Junger v. John V. Dinan Assoc, Inc.
164 A.D.3d 1428 (2nd Dept 2018)..................................................................................................11

Kenford Co. v County of Erie,
73 NY2d 312 (4th Dept. 1999) .........................................................................................................8

Legum v. Russo,
133 A.D.3d 638 (2nd Dept. 2015) ............................................................................................................. 5

iii

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Leon v. Martinez,
84 N.Y.2d 83, N.Y.S.2d 972 (1994) ................................................................................................4

MP Cool Invs. Ltd. v. Forkosh,
141 A.D.3d 111 (1st Dept. 2016)....................................................................................................11

MP Cool Invs. Ltd v. Forkosh,
142 A.D.3d 286 (1st Dept. 2016)....................................................................................................11

National Union Fire Ins. Co. of Pittsburgh, Pa. v. Worley,
257 A.D.2d 228, N.Y.S.2d 57 (1st Dept. 1999) .............................................................................10

New York Pepsi-Cola Distrbs. Assn. v. Pepsico, Inc.
240, A.D.2d 315 (1st Dept.)..............................................................................................................9

Pergament v. Roach,
41 A.D.3d 569, N.Y.S.2d 591 (2nd Dept. 2007).............................................................................13

P.T. Bank Cent. Asia v. ABN AMRO Bank N.V.,
301 A.D.2d 373 (1st Dept. 2016) ....................................................................................................11

Rovello v. Orofino Realty Co,
40 N.Y.2d 633 N.Y.S.2d 314 (1976) ...............................................................................................5

Skouras v. Brut Prods. Inc.,
45 A.D.2d 646 (1st Dept. 1974)........................................................................................................9

Rules and Statutes

CPLR § 3016(b) .............................................................................................................................11

CPLR § 3025(b) .............................................................................................................................12

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Plaintiff Army Construction LLC (“Army” or the “Plaintiff”) submits this Memorandum

of Law in opposition to Defendants National Door & Hardware Inc. (“National Door”), Mario

Gonzalez (“Gonalez”), Martin Blum (“Blum”), Mark Molinuevo (“Molinuevo”) and Nelson A.

Almone (“Almonte”)’s motion to dismiss Plaintiff’s Complaint.

PRELIMINARY STATEMENT

Plaintiff’s Complaint contains three causes of action: First Cause of Action for Breach of

Contract, Second Cause of Action for Tortious Interference with Business Relationship, and a

Third Cause of Action for Fraudulent Inducement. Plaintiff seeks to hold Defendants liable due

Defendants’ intentional furnishment of improper, defective and unsafe doors to Army, as prime

contractor for a public improvement school project for the New York City School Construction

Authority (“SCA”). Additionally, Army’s Complaint seeks relief related to Defendants’

abandonment of the project and refusal to complete contract work. As a result of Defendants’

breach, Army terminated National Door and was forced to continue to maintain scaffolding and

incur other supervision costs during the period that National Door failed and refused to complete

its work.

As the Court is well aware, Plaintiff is not required to prove its case at this early stage.

Plaintiff need only establish that it has stated a case. Plaintiff easily clears this bar. The

Complaint contains specific allegations, many of which are supported by sworn statements,

admissions by the Defendants in the form of affidavits, email correspondence among Plaintiff

and the Defendants, and other documentary evidence attached to the Complaint as exhibits.

In contrast to Plaintiff’s incontrovertible admissible evidence, Defendants, on a Motion to

Dismiss, instead rely on self-serving statements and documents (including Defendants’ own

project documents) that actually support Plaintiff’s causes of action against Defendants. At best,

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the Motion raises issues of fact that are inappropriate for determination on a motion to dismiss

and which need to be determined after discovery is held.

Defendants, in their Motion, attempt to set forth the reasons why Plaintiff’s allegations

are inadequate to meet the pleading standard under the CPLR which however is unavailing and

contradicted by admissible documentary evidence. This documentary evidence conclusively

establishes that Plaintiff and Defendant National Door entered into an agreement (the “National

Door Agreement”) which explicitly incorporated certain specifications and requirements for the

subject doors and appurtenances (the “Doors”) required to be furnished by National Door to

Plaintiff. (See Bajro Aff. Para 7-13, Ex. 3,4). The very documents submitted in this Motion by

both Plaintiff and Defendants demonstrate that (i) the National Door Agreement required

National Door to select the Doors from a preapproved list of Door manufacturers (See Bajro Aff.

Para 8, Ex. 3); and (ii) National Door did select an approved Door manufacturer, submitted the

approved manufacturer to Plaintiff for SCA’s approval and even acknowledged by email “All

drawings and spec sections listed below are include [sic] in the quote for this project” (See

Bajro Aff. Para 11, Ex 4, 5), only to knowingly, and in bad faith substitute non-approved Doors

to the Project without the knowledge of Plaintiff until after delivery and after Plaintiff had

already paid Defendants $42,340.00 (See Bajro Aff. Para 14-17, Ex 6) for the useless, unsafe,

non-confirming Doors.

Moreover, sworn to affidavits and documentary evidence including emails exchanged

between Defendants and Plaintiff (Bajro Aff. Para 23-24, Ex 7), demonstrate that National Door

failed and refused to furnish certain Door Saddles to the Project and then even refused to respond

to Plaintiff’s emails, thereby delaying the Project. (Bajro Aff. Para 24, Ex 7). This caused

Plaintiff to incur costs such as extended scaffold rental, security, supervision and other costs

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because Plaintiff could not complete the Project until the Doors and Door Saddles were installed

and inspected by SCA. Further, due to National Door’s delays, abandonment of the Project, and

eventual termination by Plaintiff (See Bajro Aff. Para 26-27, Ex. 8,9) National Door exposed

Plaintiff to liquidated damages in the amount of $2,500 per day. (See Bajro Aff. Para 6,28, Ex.

1, 10.) Defendants’ argument that they did not breach the National Door Agreement is

conclusively disproven as set forth in detail below, and Plaintiff has clearly and adequately

pleaded its breach of contract cause of action.

In addition, Plaintiff adequately pleaded its claim of intentional interference with

Plaintiff’s business opportunities based on Defendants’ use of information gained through its

contractual relationship with Plaintiff to sabotage and disrupt Plaintiff’s business relationship

with the SCA. Plaintiff also pleaded with the requisite level of particularity its cause of action

that Defendants fraudulently induced Plaintiff to enter into the National Door Agreement and to

pay Defendants for Doors based on Defendants’ misrepresentations that National Door would

supply doors that complied with the SCA’s requirements, despite the fact that National Door

never had any intention of doing so.

Here, Defendants admit in their affidavit in support of the Motion, that National Door did

not furnish Doors based on its own approved submissions and instead submitted unapproved,

unsafe substitutes. Defendants’ respond to these allegations of breach by submitting

unsupported statements that Plaintiff permitted Defendants to make such substitution of Doors.

Defendants’ self-serving perfidy is not only improper on a motion to dismiss, but is also belied

by the fact that Defendants provide no explanation or justification for Plaintiff’s alleged

acquiescence to the substitution, because none exists. In any event, for purposes of this Motion,

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the very material issue of fact concerning the substitution of Doors is sufficient alone to deny

Defendants’ Motion.

On a motion to dismiss, the Court must draw all inferences in favor of Plaintiff. Given

this standard, it is clear that the Complaint adequately alleges the causes of action against these

Defendants that damaged Plaintiff and decimated Plaintiff’s future business opportunities with

the SCA. As such, the Motion should be denied in its entirety.

STATEMENT OF FACTS

Plaintiffs respectfully refer the Court to the Opposition Affirmation of Michael D. Ganz,

Esq. dated March 25, 2024 (the “Ganz Affirmation”, the Opposition Affidavit of Abdul Bajro,

Plaintiff’s President sworn to on March 25, 2024 (the “Bajro Aff.” and the Exhibits attached

thereto for a full recitation of the relevant background and procedural history.

ARGUMENT

STANDARD OF REVIEW

It is well settled that “(w)hen assessing the adequacy of a complaint in light of CPLR

3211(a)(7), the court must afford the pleadings a liberal construction, accept the allegations of

the complaint as true, and provide the plaintiff the benefit of every possible favorable inference”

AG Capital Funding Partners, L.P. v. State Street Bank and Trust Co., 5 N.Y.3d 582 (2005).

Courts should determine only whether the facts as alleged fit within any cognizable legal theory.

Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972 (1994). The standard is so liberal that the

test is simply “whether the proponent of the pleading has a cause of action,” not even “whether

he has stated one.” Leon v. Martinez, 84 N.Y.2d at 88 quoting Guggenheimer v. Ginzburg, 43

N.Y.2d. 268, 275 (1977). Further, any deficiencies in the complaint may be amplified by

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supplemental pleadings and other evidence. See Rovello v. Orofino Realty Co, 40 N.Y.2d 633,

635-636, 389 N.Y.S.2d 314 (1976).

Application of this standard mandates that the Court deny the Motion in its entirety.

POINT I

PLAINTIFF ADEQUATELY PLEADS
THAT DEFENDANTS BREACHED THE NATIONAL DOOR AGREEMENT

A. Plaintiff Adequately Alleges That Defendants
Breached the National Door Agreement

Under New York law, “the essential elements of a cause of action to recover damages for

breach of contract are the existence of a contract, the plaintiff’s performance pursuant to the

contract, the defendant’s breach of its contractual obligations, and damages resulting from the

breach.” Legum v. Russo, 133 A.D.3d 638, 639 (2nd Dept. 2015). Here, Plaintiff pleaded all of

the requirements for a breach of contract claim: (i) the existence of the National Door Agreement

(Ex A. Complaint, para. 9), (ii) Plaintiff’s performance of the National Door Agreement,

including making payments to Defendants (Ex A, Complaint para. 16, 35), (iii) Defendants’

breaches of the National Door Agreement (Ex A, Complaint para. 34), and (iv) damages caused

by Defendants to Plaintiff resulting from the breach of the National Door Agreement (Ex A,

Complaint para. 34, 37).

The Complaint alleges that Defendants breached the National Door Agreement in the

following ways: (i) Defendants entered into the National Door Agreement, agreeing to supply

Doors that met the Contract Specifications, including those listing the available approved Door

manufacturers; (ii) Defendants agreed to complete the work under the National Door Agreement

pursuant to a specific schedule, (iii) Defendants furtively substituted nonapproved Doors from a

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non-approved manufacturer which Doors were explicitly not allowed to be used by the SCA as

Owner of the Project, (iv) Defendants took money from Plaintiff in the amount of $42,340

despite providing unapproved, improper and unsafe Doors that Defendants knowingly

substituted without Plaintiff’s knowledge or consent; (v) Defendants failed and refused to

complete the National Door Agreement thereby delaying Plaintiff’s overall work at the project;

(vi) Defendants caused Plaintiff to incur additional costs, not only to replace the Doors with

proper approved Doors, but by causing damages in the form of Plaintiff’s extended costs for

scaffold rental, security, supervision and other costs, including potential liquidated damages at

$2,500 per calendar day of delay; and (vii) Defendants abandoned the Project, defaulted and

were properly termination from the Project.

Defendants do not even mention in their Opposition the long period of time during the

fall and winter of 2023 when Defendants egregiously failed to even respond to Plaintiff’s pleas

to provide them with dates when the Door Saddles could be delivered. Additionally, Defendants

failed to respond to Plaintiff’s default and termination letters. In short, Defendants intentionally

provided Plaintiff with Doors that were unapproved for use on a public school, collected $42,340

for those useless Doors, ignored all demands from Plaintiff to complete their work or even

provide Plaintiff with dates for shipment of the Door Saddles, and now expect this Court to

dismiss Plaintiff’s Complaint, allowing Defendants to evade accountability for their incomplete

and defective work, while keeping the windfall of $42,340, notwithstanding other damages in

excess of $179,922.24 that Defendants inflicted on Plaintiff. Dismissal of this breach of contract

cause of action is clearly inappropriate.

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B. Defendants are Responsible for Plaintiff’s General Damages Naturally Flowing
From Defendants’ Refusal to Complete Their Work, Furnishing the Unapproved
Doors, Defaulting and Finally Being Terminated

Defendants’ Motion to Dismiss utterly fails to establish that Plaintiff’s Breach of

Contract Cause of Action should be dismissed. Rather, Defendants’ Motion seems to concede

that fact and instead seeks to dismiss certain damages claimed by Plaintiff against Defendants as

consequential damages not contemplated by the National Door Agreement. This is inappropriate

on a Motion to Dismiss, and Defendants argument to that effect is without merit.

First, The National Door Agreement clearly contemplated that Defendants would finish

their work pursuant to the Schedule set forth in the National Door Agreement. Defendants play

fast and loose with the Court by referencing the National Door Agreement date of September 5,

2023, and stating that the alleged time for performance had not run yet, but such an argument

strains all credibility. The admissible documentary evidence clearly supports the fact that

Defendants defaulted and were terminated in December 2023 due to Defendants’ failure and

refusal to complete their work, as well as Defendants’ refusal to even respond to Plaintiff’s

emails seeking to ascertain when National Door would complete its work. Ultimately,

Defendants cannot even argue that they performed any of their work since even the Doors they

provided were unapproved, improper, and unsafe.

Moreover Defendants’ own Motion acknowledges that the time frames were an express

and material term of the National Door Agreement. Plaintiff was required to have the Doors

shipped and installed in order to timely complete its own Contract. The resulting damages

incurred by Plaintiff as a result of Defendants’ shenanigans were foreseeable and Defendants’

feigned attempt to characterize those damages as “extraordinary” or “special” is unavailing.

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Defendants’ reliance on American List Corp. v. U.S. News & World Report, 75 N.Y.2d 38

(1989) is similarly misguided.

In American List, the extraordinary damages were “lost profits” for work that the plaintiff

could not complete. In stark contrast here, Plaintiff’s damages consist of general damages that

naturally flowed from Defendants’ breaches including, extended scaffolding rental, extended

security, extended supervision and other costs that Plaintiff has had to pay to third-party vendors.

These are all real costs out of Plaintiff’s pocket that Plaintiff incurred as a direct consequence of

Defendants’ breach.

As the Court in American List, summarized, the distinction between general and specific

damages is that Kenford Co. v County of Erie, 73 NY2d 312, 319 (4th Dept. 1999), while special

damages are extraordinary in that they do not so directly flow from the breach.” American List,

75 N.Y.2d at 43. Plaintiff’s damages due to Defendants’ breach were therefore foreseeable and

Defendants are liable to Plaintiff for that breach.

POINT II

PLAINTIFF ADEQUATLEY
PLEADS TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIP

Under New York law, to state a claim for tortious interference with business relations, a

plaintiff must allege that: “(1) the plaintiff had business relations with a third party; (2) the

defendant interfered with those business relations; (3) the defendant acted for a wrongful purpose

or used dishonest, unfair, or improper means; and (4) the defendant’s acts injured the

relationship.” See Catskill Dev., L.L.C. v. Park Place Entm’t Corp., 547 F.3d 115, 132 (2d

Cir.2008); Carvel Corp. v. Noonan, 3 N.Y.3d 182, 785 N.Y.S.2d 359 (2004).

Plaintiff’s Complaint adequately states a claim for interference with Plaintiff’s business

relationship with the SCA. As alleged in the Complaint, the Defendants possessed knowledge of

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the SCA’s requirements that the Doors be manufactured by a set list of approved manufacturers.

Defendants knew of this requirement only because of their access to the Prime Contract and

information contained in the National Door Agreement, which they gained only by promising

Plaintiff that they would abide by the SCA’s requirements. By using the information Defendants

gained via their access to the Prime Contract and the National Door Agreement, Defendants

knowingly and intentionally substituted Doors by unapproved manufacturers for the purpose of

damaging Plaintiff’s relationship with the SCA and driving away future business to Plaintiff

from the SCA.

Further, Defendants’ argument that Plaintiff’s tortious interference claim is duplicative is

premature and without merit. It is well-established that “the intentional infliction of injury

without just cause may be Prima facie tortious, and there may be a breach of duty giving rise to

tort liability, which is distinct from the breach of contract, even though the origin of that duty

was a contractual undertaking.” Skouras v. Brut Prods. Inc., 45 A.D.2d 646, 647 (1 st Dept.

1974). Here, as alleged in the Complaint, Defendants used information gained via their

contractual relationship with Plaintiff to purposefully sabotage Plaintiff’s business relationship

with the SCA.

Further, Defendants rely on a series of cases where allegations of tortious interference

were contradicted by conclusive documentary evidence. See Defendants’ MOL, p. 6. Defendants

cite Chappo & Co., Inc. v. Ion Geophysical Corp., 83 A.D.2d 499, 501 (1st Dept. 2011) citing

New York Pepsi-Cola Distrbs. Assn. v. Pepsico, Inc. 240, A.D.2d 315 (1st Dept. 1997). In stark

contrast here, not only do Defendants fail to present any evidence contracting Plaintiff’s

sufficiently pled allegations, the allegations are supported by affidavit. In short, Plaintiff’s

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Second Cause of Action for Tortious Interference with Business Relationship must survive the

Motion to Dismiss.

POINT III

PLAINTIFF ADEQUETLY PLEADS FRAUD AGAINST THE DEFENDANTS

Plaintiff asserts in the Third Cause of Action a claim for fraud against the Defendants

based upon Defendants’ representation prior to entering into the National Door Agreement.

The elements of fraudulent inducement are a false representation of a material fact, with

scienter; reliance thereon by the plaintiff to its detriment; and the person making the

representation must be the other party to the contract or acting on behalf of such other

party. National Union Fire Ins. Co. of Pittsburgh, Pa. v. Worley, 257 A.D.2d 228, 690 N.Y.S.2d

57 (1st Dept. 1999).

In its Complaint (Ex A), Plaintiff clearly satisfied its pleading requirements necessary to

survive Defendants’ Motion to Dismiss, including Defendants’ false representation that they

would abide by the SCA requirements for furnishing an approved manufacturer. Defendants

actually furnished the approved manufacturer information to Plaintiff prior to execution of the

National Door Agreement which Plaintiff justifiably relied upon in entering into the National

Door Agreement. Due to Defendants’ fraudulent inducement, Plaintiff suffered damages as set

forth herein and in the accompanying Affidavit of Bajro.

Clearly Plaintiff justifiably relied on Defendants’ representations prior to the National

Door Agreement, but any factual doubt on this issue should be sufficient to defeat Defendants’

Motion. For example, in Gonzalez v. 40 West Burnside Avenue LLC, 107 A.D. 3d 542 (1st Dept.

2013), the First Department rejected the dismissal of a cause of action for fraudulent inducement

as premature since the central issue of plaintiff’s reliance on the fraudulent inducement was

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justified. The First Department held “Under the particular facts of this case, dismissal of the

causes of action against the owners at against the owners at the pleading stage was premature

because plaintiff has alleged facts showing that her release may have been fraudulently

obtained. To make out the basic elements of a fraudulent inducement claim, a plaintiff must

establish that the reliance on the false representation was justified citing (Global Mins. & Metals

Corp. v. Holme, 35 A.D.3d 93, 98, 824 N.Y.S.2d 210 [1st Dept. 2006], lv. denied 8 N.Y.3d 804,

831 N.Y.S.2d 106 [2007] ). Whether the plaintiff could justifiably rely on the false representation

is an issue of fact Black v. Chittenden, 69 N.Y.2d 665, 669, 511 N.Y.S.2d 833(1986]); Braddock

v. Braddock, 60 A.D.3d 84, 88, 871 N.Y.S.2d 68 (1st Dept. 2009). “The question of what

constitutes reasonable reliance is always nettlesome because it is so fact-intensive” DDJ Mgt.,

LLC v. Rhone Group L.L.C., 15 N.Y.3d 147, 155, 905 N.Y.S.2d 118 (2010).

Defendants allege that Plaintiff did not allege the fraudulent misrepresentation in detail,

which is untrue. In support of their misstatement, Defendants cite P.T. Bank Cent. Asia v. ABN

AMRO Bank N.V., 301 a.d.2D 373, 376 (1st Dept. 2016) citing CPLR § 3016(b). However, a

closer reading of that case indicates the Court found the pleading of the fraud cause of action

sufficient, holding that “Although plaintiff lender did not allege how or when defendant

assertedly obtained information demonstrating that appraised value of collateral for loan in

which it asked plaintiff to participate was overstated, neither CPLR § 3016 (b) nor any other

rule of law requires plaintiff to allege details of asserted fraud that it may not know or that may

be peculiarly within defendant's knowledge at pleading stage, and complaint sufficiently alleges

that defendant intentionally misrepresented or failed to disclose material facts. [Emphasis

added]. Here, Plaintiff provided a detailed assertion of Defendants’ fraudulent inducement.

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Plaintiff also sufficiently pleaded scienter as stated above. Defendants’ cite to MP Cool

Invs. Ltd. v. Forkosh, 141 A.D.3d 111 (1st Dept. 2016), which was superseded by MP Cool Invs.

Ltd v. Forkosh, 142 A.D.3d 286 (1st Dept. 2016). Defendants’ citation of Junger v. John V.

Dinan Assoc, Inc.164 A.D.3d 1428 (2nd Dept 2018) is likewise unpersuasive. Unlike in Junger,

the fraudulent misrepresentation alleged here lies outside of the National Door Agreement as it

occurred prior to the National Door Agreement as an inducement for Plaintiff to enter into the

National Door Agreement.

In any event, Defendants conclude their memorandum of law in support of their motion

to dismiss the Fraud by boldly stating “Plaintiff’s allegations are belief by the fact that the

signed Quotes did not require door and related hardware to be supplied by any specific

manufacturer. Therefore, Plaintiff’s Fraud cause of action against all Defendants must be

dismissed in its entirety.” Defendants miss the point entirely. The National Door Agreement

required the Defendants to supply the Doors and related hardware from one of the seven SCA

approved manufacturers in the referenced SCA specification sections. Obviously, Defendants

initially complied with the National Door Agreement by submitting the Ceco Doors and related

hardware as one of the SCA approved manufacturers to Plaintiff for SCA/AECOM (SCA’s

designer) approval. Having been paid by Plaintiff to supply those SCA approved Doors,

Defendants thereafter egregiously substituted different unspecified, unapproved, unsafe,

unusable and useless doors instead of the required Doors that Plaintiff, SCA and AECOM

expected to be delivered to the Project.

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POINT IV

TO THE EXTENT THERE ARE ANY PLEADING
DEFICIENCIES, PLAINTIFF SHOULD BE GIVEN LEAVE TO AMEND.

Plaintiff does not concede that any of its Causes of Action should be dismissed pursuant

to the Motion to Dismiss. However, should this Court grant any part of Defendants’ Motion, it is

respectfully submitted that the Court should grant Plaintiff leave to amend its Complaint

pursuant to this Court’s discretion under CPLR § 3025(b). See CPLR § 3025(b) (“Whether to

grant such leave is within the motion court's discretion, the exercise of which will not be lightly

disturbed”); Pergament v. Roach, 41 A.D.3d 569, 572, 838 N.Y.S.2d 591 (2nd Department 2007).

CONCLUSION

In light of the foregoing, the Court should deny Defendants’ Motion to Dismiss in its

entirety, together with such other and further relief as this Court may deem necessary and proper.

Dated: Woodbury, New York KAUFMAN DOLOWICH LLP
March 25, 2024

By: /s/ Michael D. Ganz __________
Michael D. Ganz, Esq.
135 Crossways Park Drive, Ste. 201
Woodbury, NY 11797
(516) 681-1100
Attorneys for Plaintiff

17 of 17

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Lyle E. Frank Track Judge’s New Case

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Document Filed Date

March 28, 2024

Case Filing Date

January 16, 2024

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Motion-Secondary: Army Construction Llc v. National Door & Hardware Inc., Mario Gonzalez, Martin Blum, Mark Molinuevo, Nelson A. Almonte

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