Sanders v. WB Kirby Hill LLC et al
MEMORANDUM AND ORDER granting 32 Motion to Dismiss for Failure to State a Claim. For the reasons stated herein, the Janowitz defendants' motion to dismiss is granted. Plaintiff is granted leave to replead consistent with this Order within twenty (20) days. (Ordered by Judge Leonard D. Wexler on 11/14/2017.) (Fagan, Linda)
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOV 14 2017
LONG ISLAND OFFICE
DOUGLAS H. SANDERS,
MEMORANDUM AND ORDER
WB KIRBY HILL LLC, TRJ SERVICES, LLC
d/b/a COAST OAK GROUP, BERNARD M.
JANOWITZ, and SAMMY I. JANOWITZ,
BARSHAY SANDERS, PLLC
BY: Craig B~ Sande~s, Esq.
lOO. Garden City Plaza, Suite 500
·Garden City·, New.York . 11530 ·
. A~orney for P-laintiff
STEVEN SIEGEL, P.C.
BY: ·Nathan V. Bishop, Esq. ..
123-12 82nd Avenue .. · ·.. ·
Kew Gardens, New York 11415
Attorneys for Defendants Bernard M. Janowitz and Sammy I. Janowitz
WEXLER, District Judge:
This case arises out of transactions between the parties whereby plaintiff Douglas H.
Sanders ("plaintiff' or "Sanders") purchased a piece of property and defendants built a home on
that property pursuant to contract. Plaintiff alleges that the home as built did not comply with
the requirements set forth by the non-party Village ofMuttontown (the "Village"), and thus
defendants WB Kirby Hill LLC ("WB Kirby") and TRJ Services LLC d/b/a Coast Oak Group
("Coast Oak") breached the contract. He further alleges that the individual defendants, Bernard
("Bernard J.") and Sammy I. Janowitz ("Sammy J.") (collectively, the "Janowitz
. :defendants"), made various misrepresentations constituting fraud. Currently before the Court is
the Janowitz defendants' .motion to dismiss. For the reasons set forth below, the motion is
A. Factual History
The factual allegations regarding the moving defendants are summarized for the purpose
of this motion. This case involves plaintiffs purchase of a lot located at 6 Kingwood Court,
Muttontown, New Yotk~·_inan·area referred to as the Stone Hill development, and the
circumstances leading to the building of his home ·on that lot.
1. The parties
On Fehruary.23, 2010, San~ers and WB Kirby 1 entered into a purchase agreement for
the land for $1.4 mi_llion. Am. Comp~. ~.~8 & Ex. 1 ("Purchase Agreement"). The Purchase
. Agreement was signed by plaintiff and WB Kirby "By Bernard Janowitz." That same day, WB
Kirby entered into a Construction Agreement with Sanders to build a home on the land. Am.
Compl. ~19 & Ex. 2 (the "Construction Agreement"). That agreement was also signed by
plaintiff and WB Kirby "By· Bernard Janowitz, Builder." Plaintiff makes no allegations
regarding Bernard J.' s signature on these documents, but rather claims that there is "no contract"
between Bernard J. and himself. Id
He also alleges that Bernard J. was neither an owner
nor principal of WB Kirby, and only held himself out as a principal of that entity. On a single
occasion, plaintiff refers to Bernard J. as "the developer." Am. Compl.
Plaintiff alleges that Co~st Oak is a successor in interest to WB Kirby and has agreed to indemnify it for
any liabilities arising from the construction of homes in the Stone Hill development. Am. Campi.~~ 1011. There are no separate allegations regarding defenda~t TRJ Serv;ces, LLC d/b/a Coast Oak Group. As
the claims against the. non-Janowitz defendants are not at issue on this motion, recitation of particular
allegations regarding them is limited.
SammyJ.'s role in th~se events is unclear. Plaintiff alleges Sammy J. was not an owner
· or employee of WB Kirby and that Sanders had·no contractual relationship with him. Plaintiff
claims that Sammy J. "falsely represented and held his father out as a principal of WB Kirby."
Presumably, Sammy's "father" is Bernard. In addition, Sammy J., in some
undesignated capacity, "personally picked the pavers and supervised the design of the retaining
2. Allegations leading to the execution of contracts
Plaintiff generally alleges that in January 201 0, prior to his purchase of the property,
· Bernard J., knowing that plaintiff wanted to build an oversize, 6000 square foot home with room
for a pool as of right, Am.
of the land for both the larger
provided drawings and oral assurances on the suitability
home ~d the pool, id. ~3?.? and "fraudulently misrepresented
and/or failed to advise Sanders that the larger home would require varriances [sic] and
potentially would violate Village rules and ordinances despite knowing same." Id
further alleges that Bernard J. made additional fraudulent representations including, inter alia,
that he would handle filings with the Village, that there would be no issues with plaintifrs
specifications, that no variances would be required, and that the specific lot purchased by
plaintiff could accommodate all his requirements without variances. There is no indication
regarding when, where, or how these representations were made.
Sammy J. also allegedly made representations to plaintiff such as, inter alia, that no
variances would be required, and that there would be no issue with the Village regarding either
the size of the hoine or the addition of a pool as of right. Plaintiff alleges that both Janowitz
defendants knew at the time ofplaintifrs purchase that the Village would not approve the larger
home and would not approve a pool as of right. Additionally, the Janowitz defendants
fraudulently conveyed ''inaccurate information from the architect to Sanders" to convince the
latter to enter into the purchase and· c<;>nstruction agreements. Am. Compl. ~48.
2. Post-contract allegations
The Construction Agreement on February 23, 2010 provided, inter alia, that WB Kirby
would furnish all labor, ma~erials, and equipment necessary to construct the home, and that WB
Kirby "shall obtain and pay for all Certi~cates of Occupancy, Compliance and/or Completion for
the Improveme~ts as· inay be required by the applicable governmental authoritie~ ... " Am.
Compl. ~65. Sanders paid WB Kirby $1.6 million as required by the Construction Agreement,
plus an additional $330,.000 in change order charges. WB Kirby delivered the Certificate of
Occupancy to Sanders on or about September 21, 2011. Id
· Sanders resided-in the home from approximately March 2011 to August 2014. During his
residency, Sander~ installed landscaping, and a patio and pergola at the rear of the home. Upon
the relocation of plaintiffs business, the property was placed on the market. On or about August
6, 2014, plaintiff entered into a contract of sale for the property in the amount of $3.415 million.
In October 2014, the purchasers' attorney advised that their title company required approval
from the Village building department for the ·patio, p~rgola, and landscaping. Sanders applied
. for a building permit to the Village for these improvements.
9n or about April2,-2015,.Plaintiffreceived a comment letter from the Village advising
·him that the rear patio encroaches upon the required setback. Am. Compl., Ex. 4. The letter
listed additional items to be addressed including a front masonry walk that required a permit,
violations of a drainage easement and deed restricted area. Plaintiff alleges these conditions
were built by WB Kirby in violation of the building permits it had obtained from the Village. He
also alleges that the conditions were "fraudulently hidden" by WB Kirby and the Janowitz
On July 26, 2016, the Vil~age issued another comment letter listing outstanding
comments that had not been satisfied. Am. Compl., Ex. 5. In addition to items mentioned in the
previous comment letter, the Village indicated that the Sanders home exceeds the maximum 35
· foot building height as well as the sit~ line equation from street level and would also require a
variance. In the absence of the granting of a variance, Sanders claims that, in order to obtain a
Certificate of Occupancy, he would be required to "remediate the violations by demolishing and
rebuilding in accordance with [V'illage] r~quirements." Id. ~118.
Sanders has filed multiple pe11J1it applications to date with the Village. In light of the
requirements of the Village,· Sanders. was forced to terminate the sale of the property and refund
the deposit. Am. Compl.
The Amended Complaint does not indicate when this occurred.
Plaintiff further claims that the property is not marketable for sale or rent under its current
condition, and that .he lost several potential.pur~~~sers and renters who were afraid of the loss of
qui~tenjoyment created by the permitting process.
B. Procedural History
Plaintiff commenced this case against defendants alleging three causes of action -. · breach of contract against both WB Kirby and Coast Oak, and fraud against the Janowitz
defendants. Plaintiff amended his complaint to add claims of fraudulent inducement, and
· negligent misrepresentation against the Janowitz defendants. The Janowitz defendants move to
dismiss a~l the claims alleged against th~m.
II. LEGAL STANDARDS
In considering a motion to dismiss made pursuant to Rule 12(b)( 6), the court must accept
the factual allegations in the complaints as true and draw all reasonable inferences in favor of the
plaintiff. Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 113 (2d Cir. 2013)
(citations omitted). The court determines "whether the 'well-pleaded factual allegations,'
true, 'plausibly give rise to an entitlement to relief."' Hayden v. Paterson, 594
F.3d I50,'I6I (2d Cir. 20IO) (qu
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