Novack Burnbaum Crystal LLP, New York (Howard C. Crystal of counsel), for appellant.
Kushnick Pallaci PLLC, Bohemia (Adam S. Cohen of counsel), for respondents.
Richter, J.P., Manzanet–Daniels, Andrias, Kern, Singh, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered February 10, 2017, which granted defendants' CPLR 3211 motion to dismiss the complaint, unanimously affirmed, without costs.
The motion court correctly dismissed the causes of action for fraudulent inducement as duplicative of the breach of contract claim (see generally Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987] ). Plaintiff's allegation that defendants misrepresented their intent to use a deposit to engage subcontractors amounts to allegations of an insincere promise of future performance under the contract, which is insufficient to plead fraud (see Cronos Group Ltd. v. XComIP, LLC, 156 A.D.3d 54, 64 N.Y.S.3d 180, 2017 N.Y. Slip Op. 06515 [1st Dept. 2017] ; Castellotti v. Free, 138 A.D.3d 198, 211, 27 N.Y.S.3d 507 [1st Dept. 2016] ). The claim based on allegations of post-contract misrepresentations is similarly duplicative of the breach of contract claim ( Clark–Fitzpatrick, 70 N.Y.2d at 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 ).
The motion court correctly dismissed the breach of contract claim on the ground that plaintiff failed to satisfy a condition precedent required for bringing suit. Although plaintiff timely filed a notice of claim with the initial decision maker under § 15.1.2 of the AIA A201–2007 form agreement (construction agreement), it did not pursue mediation as required by § 15.3.1 (see MCC Dev. Corp. v. Perla, 81 A.D.3d 474, 475, 916 N.Y.S.2d 102 [1st Dept. 2011], lv denied 17 N.Y.3d 715, 934 N.Y.S.2d 373, 958 N.E.2d 552 [2011] ). Plaintiff's contention that it was not required to comply with the condition precedent because the agreement giving rise to the deposit was separate and distinct from the construction agreement is unavailing. As the construction agreement governs costs and payment for work performed, which included the 10% deposit, the negotiations and agreement giving rise to the deposit have been superseded by the construction agreement pursuant to the latter agreement's merger clause (see Matter of Primex Intl. Corp. v. Wal–Mart Stores, 89 N.Y.2d 594, 599–600, 657 N.Y.S.2d 385, 679 N.E.2d 624 [1997] ; Garthon Bus. Inc. v. Kirill Ace Stein, 138 A.D.3d 587, 591–592, 31 N.Y.S.3d 19 [1st Dept. 2016], appeal dismissed 27 N.Y.3d 1182, 38 N.Y.S.3d 91, 59 N.E.3d 1203 [2016] ).
The motion court correctly rejected plaintiff's claim of a mutual termination, in light of emails clearly showing a unilateral termination.
Although the motion court erroneously relied on an inapplicable contract provision in dismissing the breach of fiduciary duty claim, the claim should still be dismissed as duplicative of the breach of contract claim ( Clark–Fitzpatrick, 70 N.Y.2d at 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 ; Chowaiki & Co. Fine Art Ltd. v. Lacher, 115 A.D.3d 600, 600, 982 N.Y.S.2d 474 [1st Dept. 2014] ).