YONG JIA CONSTR. INC. v. BETTS
2011 NY Slip Op 51617(U)
Supreme Court, Queens County.
Decided August 26, 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.