2011 NY Slip Op 51617(U)


Supreme Court, Queens County.

Attorney(s) appearing for the Case

Kevin Kerveng Tung, P.C., Song Chen, Esq. , 136-20 38th Ave., Flushing, New York 11354, for the Plaintiff.

Law Offices of Janet A. Paganelli, Janet A. Paganelli Esq. , 445 Hamilton Ave., White Plains, New York 10601, for the Defendants.


This is an action essentially for breach of a construction contract, where the plaintiff contends that it was not paid for its work. The defendants seek to dismiss the second and third causes of action of the complaint.

The Court, as an initial matter, does not find that the plaintiff's complaint is a model of clarity. The first cause of action is essentially for breach of contract, but the word "breach" does not appear in the complaint. The second cause of action is for unjust enrichment, but the plaintiff fails to narrow that broad concept to the facts by either naming or exploring concepts of "quasi-contracts" or "quantum meruit." Indeed, plaintiff's second cause of action implies that defendants retained or accepted the services provided. None of the essential elements of unjust enrichment, quasi-contract, or quantum meruit are spelled out thoroughly.

Justice Benjamin N. Cardozo, while a Judge of the New York Court of Appeals, said famously: "The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view today." Wood v Lucy, Lady Duff-Gordon, 222 N.Y. 88, 91 [1917]. Despite Cardozo's beautiful articulation of the concept, one reads the plaintiff's complaint yearning for some old-fashioned formalism that would spell out and sustain a cause of action.

The third cause of action is for fraud, but the acts or words of fraud are not spelled out. There is no clue of whether the fraud was in the inducement of the contract or in its execution. Plaintiff seems to be saying that the fact of nonpayment on a contract is enough to sustain a cause of action for fraud and its demand for punitive damages.

Even worse, it would have been helpful, although not essential, for plaintiff to attach a copy of the contract as an exhibit to the complaint. Plaintiff's counsel, in opposition to the defendants' motion does supply it: the original version in Chinese, not accompanied by a certified translation into English. See, e.g., Altivater Gessler-J.A. Baczewski Intern. (USA) Inc. v Sobieski Destylarnia S.A., 572 F.3d 86, 88 n.3 [2nd Cir. 2009] [Both sides offered proper English translation of contract in Polish]; Azimut-Benetti, S.P.A. v Magnum Marine Corp., 55 A.D.3d 483 [1st Dept. 2008] [contract translated to English from Italian]; American Swiss Potash Min. Corp. v Brugger, 137 N.Y.S.2d 729 [Sup. Ct. New York County 1954] [N.O.R.].

In fact, without a proper translation, the Court is unable to determine whether the contract contained a specific disclaimer clause that would have an effect on any oral recitations, possibly relevant to the third cause of action for fraud. See, e.g., Tarantul v Cherkassky, 84 A.D.3d 933 [2nd Dept. 2011].

The motion to dismiss by defendants is also not particularly helpful since there is no recitation of the salient facts, and the motion begins almost from the start with a legal argument by defense counsel.

The branch of defendants' motion to strike the second cause of action for unjust enrichment is granted. The Court notes that the claim of unjust enrichment, as discussed above, is pled skeletally, and plaintiff's counsel would be well-advised to obtain a book on required pleading. Two excellent books that spell out the essential elements of causes of action and defenses that must be plead are Ernest Edward Badway Encyclopedia of New York Causes of Action: Elements and Defenses [2011 ed. New York Law Journal Practice series] and Louis A. Kass, Necessary Elements of Common Legal Actions [Gould Publications 1978].

The branch of the defendants' motion to strike the third cause of action for fraud is granted. As noted, the plaintiff failed to provide an English translation of the contract. At any rate, it is difficult to allege, let alone prove, a "fraudulent breach of contract." Courts reject such claims unless the plaintiff can show an independent tort other than the breach. See, Rodriguez v Allstate Ins. Co., ____ Misc 3d ____, 2011 WL 3502773, 2011 NY Slip Op 21277 [Sup Ct Kings County 2011] [discussing pertinent case law]. Plaintiff's request for punitive damages also cannot be supported on the facts alleged. Id.

In sum, the Court grants the defendants' motion, dismissing the second and third causes of action. The second and third causes of action of plaintiff's complaint are dismissed. The second cause of action is being dismissed without prejudice upon plaintiff's counsel preparing — if so advised, serving, and filing an amended complaint that contains the elements that must be properly plead for causes of action sounding in quasi contract, quantum meruit or the value of work, labor, and services rendered, and unjust enrichment, and any other cognizable theory. In this regard, the Court gives plaintiff's counsel, if so advised, until December 1, 2011, to serve and file an amended complaint.

Any party may serve notice of entry of this decision and order, attaching a copy of the order that is date stamped by the Clerk of the Court.

The foregoing constitutes the decision, order, and opinion of the Court.


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