Brian Trematore Plumbing & Heating, Inc. v. Walsh Construction Group, LLC et al
OPINION AND ORDER re: 19 MOTION to Dismiss Pursuant to FRCP 12(b)(6). filed by Walsh Construction Group, LLC, Consigli Construction Co., Inc.., For the foregoing reasons, Defendants' Motion To Dismiss is granted in part and d enied in part. It is granted with respect to Plaintiff's defective design and negligent misrepresentation claims. It is denied with respect to Plaintiff's quantum meruit claim. Because this is the first adjudication of Plaintiff's defective design and negligent misrepresentation claims, those claims are dismissed without prejudice. Plaintiff may file an amended complaint within 30 days of the date of this Opinion & Order. The Court will hold a conference on June 8, 2021 at 10:00 A.M. The Clerk of the Court is respectfully requested to terminate the pending Motion, (Dkt. No. 19). SO ORDERED. (Status Conference set for 6/8/2021 at 10:00 AM before Judge Kenneth M. Karas.) (Signed by Judge Kenneth M. Karas on 3/31/2021) (jca)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BRIAN TREMATORE PLUMBING & HEATING,
No. 19-CV-9764 (KMK)
OPINION & ORDER
WALSH CONSTRUCTION GROUP, LLC, et al.,
David Russell Wise, Esq.
Mackey Butts & Wise
Counsel for Plaintiff
Joshua E. MacKey, Esq.
Rivkin Radler LLP
Counsel for Plaintiff
James Joseph Barriere, Esq.
Chad Justin Caplan, Esq.
Hinckley Allen Snyder, LLP
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Brian Trematore Plumbing & Heating, Inc. (“Plaintiff”) brings this Action against Walsh
Construction Group, LLC and Consigli Construction Co., Inc. (“Defendants”), alleging breach of
a construction subcontract, quantum meruit, negligent misrepresentation, trust fund diversion,
cardinal change, and constructive contract rescission. (Second Am. Compl. (“SAC”) (Dkt. No.
16).) Before the Court is Defendants’ Motion To Dismiss (the “Motion”) pursuant to Federal
Rule of Civil Procedure 12(b)(6). (Not. of Mot. (Dkt. No. 19).) For the reasons that follow, the
Motion is granted in part and denied in part.
A. Factual Background
The following facts are taken from Plaintiff’s Second Amended Complaint (“SAC”).
They are assumed to be true for purposes of adjudicating the instant Motion.
This dispute relates to the construction of a medical center in Poughkeepsie, NY (the
“Project”). (SAC ¶¶ 1, 10.) Defendants have contracted to be construction managers of the
Project (pursuant to the “Prime Contract”), which is owned by Nuvance Health Inc. (the
“Owner”). (Id. ¶ 9.) On January 13, 2017, Plaintiff subcontracted with Defendants (pursuant to
the “Subcontract”) to install plumbing at the Project for $17,895,000, excluding amounts related
to change work orders. (Id. ¶¶ 8, 13.)1
Plaintiff alleges seven causes of action. (See generally id.) Defendants move to dismiss
only three of them: breach of contract due to defective design, quantum meruit, and negligent
With regard to its defective design claim, Plaintiff alleges that CallisonRTKL
(“CRTKL”) designed the project. (Id. ¶ 22.) CRTKL provided its design to the Owner, which
provided the design to Defendants. (Id. ¶¶ 18, 22.)2 Per the Subcontract, the Project design was
to be a certain level of development known as LOD300. (Id. ¶ 20.) “From the very outset of
The scope of Plaintiff’s work increased after the Owner announced on February 7, 2018
that it planned to build an eight-floor building rather than a seven-floor building. (SAC ¶¶ 12,
Defendants did not provide this design to Plaintiff until after Plaintiff had signed the
Subcontract. (Id. ¶ 19.)
work on the Project,” Plaintiff realized that the level of development for the design “was not as
promised in the Subcontract,” and an independent expert confirmed this view. (Id. ¶¶ 21, 28–
30.) The design was riddled with defects. For example, water and medical gas piping did not fit
in the allocated space for large sections of the Project, (id. ¶ 31); the sanitary pipe outlet at the
base of each of the 284 patient room toilets was directly above structural steel framing, (id.
¶¶ 32–33); the design had no ionization system to prevent legionella, (id. ¶¶ 37–39); HVAC
systems and electrical components were improperly located, (id. ¶ 54); and other mechanical,
electrical, and carpentry work interfered with installing headwalls and gas service outlet boxes
and panels in patient rooms, (id. ¶¶ 56, 58). In addition, water was not on site until after August
9, 2019, requiring Plaintiff to perform smoke rather than water testing on the plumbing system,
which caused delay and further expense. (Id. ¶¶ 41, 55.) Plaintiff further alleges that Defendants
wastefully instructed it to use an unnecessarily difficult route for canopy drains. (Id. ¶¶ 49–51.)
It further alleges that Defendants failed to adequately respond to Plaintiff’s notice of design
defects, including the toilet outlets located above the structural steel framing, (id. ¶ 35), and the
interference of mechanical, electrical, and carpentry work with installing headwalls and gas
service outlet boxes and panels, (id. ¶ 57).
With regard to its quantum meruit claim, Plaintiff alleges that, due to the Project’s
defective design, Plaintiff submitted 109 change orders. (Id. ¶¶ 42–43.) Defendants failed to
approve many of these change orders. (Id. ¶ 44.) Plaintiff lists five unapproved change orders
related to supply piping clarifications, damage to the framing podium and framing tower,
relocation of 2-inch waste risers and other piping and fittings, and other changes. (Id. ¶¶ 45, 79.)
Plaintiff performed this work, which it values at $363,332.93, even though the change orders are
unapproved and unresolved, and thus not incorporated into the Subcontract. (Id. ¶¶ 77–78, 80–
With regard to its negligent misrepresentation claim, Plaintiff alleges that Defendants
negligently misrepresented the Project’s design, sequencing, scheduling, and coordination,
causing Plaintiff damage. (Id. ¶ 92.)
Plaintiff alleges four other causes of action. It alleges breach of contract due to improper
back charges and cuts of $13,278,432. (Id. ¶ 66.) For example, Defendants inappropriately cut
an invoice submitted by Plaintiff for hardware, including shower diverters, (id. ¶¶ 67–68), and
back charged Plaintiff for fireproofing, (id. ¶ 69). These back charges were caused by
Defendants’ poor project planning and management, including their failure to timely reply to the
390 requests for information (“RFIs”) submitted by Plaintiff to Defendants. (Id. ¶¶ 62, 64–65.)
This failure threw off the sequencing of Plaintiff’s work, and prevented it from completing
certain work. (Id. ¶¶ 70, 73–74.) Plaintiff alleges that Defendants diverted $5,469,126.07 of
funds owed to it, in violation of the New York State Lien Law, (id. ¶¶ 93–111), that Defendants’
unanswered work orders and the inadequate level of design amounted to a cardinal change, (id.
¶¶ 112–22), and that the Subcontract was constructively rescinded in part because Plaintiff never
received a LOD300 level of design as it required, (id. ¶¶ 123–40).
Plaintiff seeks damages, costs, and attorneys’ fees, additional relief related to its cause of
action pursuant to the New York State Lien Law, and interest. (Id. at 21–23.)4
Plaintiff alleges that Defendants have failed to approve several additional change
orders, including related to an ionization system, (id. ¶ 37), and a triple reinstallation of pipe
hangers, (id. ¶ 53). It is not clear whether these unapproved change orders are among the five
included in those mentioned previously. (See id. ¶¶ 45, 79.)
Here the Court refers to the ECF-generated page numbers in the upper right-hand corner
of the page.
B. Procedural Background
While Plaintiff’s initial Complaint is dated October 22, 2019, it was filed on October 23,
2019. (Dkt. No. 1.) Plaintiff filed its First Amended Complaint a month later, on November 22,
2019. (Dkt. No. 9.) On December 17, 2019, Defendants submitted a pre-motion letter seeking
leave to file a motion to dismiss Plaintiff’s defective design, quantum meruit, and negligent
misrepresentation claims. (Dkt. No. 10.) Plaintiff responded by letter dated December 19, 2019,
(Dkt. No. 13), and the Court ordered a pre-motion conference, (Dkt. No. 15). At the February 6,
2020, pre-motion conference, the Court provided Plaintiff one week to file a second amended
complaint. (See Dkt. (minute entry for Feb. 6, 2020).) Plaintiff complied, filing its SAC on
February 13, 2020. (SAC.) On February 19, 2020, Defendants filed a letter requesting that the
SAC be struck or, in the alternative, that the Court order a briefing schedule on their Motion To
Dismiss. (Dkt. No. 17.) The Court ordered a briefing schedule the next day. (Dkt. No. 18.)
Defendants submitted the Motion on March 10, 2020. (Not of Mot.; Affirmation of James J.
Barriere, Esq. in Supp. of Mot. (“Barriere Affirmation”) (Dkt. No. 20); Mem. of Law in Supp. of
Mot. (“Defs.’ Mem.”) (Dkt. No. 21).) On March 24, 2020, Plaintiff opposed. (Affirmation of
Joshua E. MacKey, Esq. in Opp’n to Mot. (“MacKey Affirmation”) (Dkt. No. 22); Mem. of Law
in Opp’n to Mot. (“Pl.’s Mem.”) (Dkt. No. 23).) Defendants filed their Reply on March 31,
2020. (Reply Mem. of Law in Further Supp. of Mot. (“Defs.’ Reply”) (Dkt. No. 24).)
A. Standard of Review
When ruling on a Rule 12(b)(6) motion to dismiss, the Court must accept all factual
allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor.
Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). The Court, however, is not required to credit
“mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Id. at 678 (quotation
marks omitted). A claim is facially plausible “when the plaintiff pleads factual content that
allows the [C]ourt to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Specifically, the plaintiff must allege facts sufficient to show “more
than a sheer possibility that a defendant has acted unlawfully,” id., and if the plaintiff has not
“nudged [his] claims across the line from conceivable to plausible, [the] complaint must be
dismissed,” Twombly, 550 U.S. at 570.
On a Rule 12(b)(6) motion to dismiss, the question “is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.”
Sikhs for Justice v. Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012). Accordingly, the “purpose
of Federal Rule of Civil Procedure 12(b)(6) is to test, in a streamlined fashion, the formal
sufficiency of the plaintiff’s statement of a claim for relief without resolving a contest regarding
its substantive merits.” Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (quotation marks
omitted). To decide the motion, the Court “may consider the facts as asserted within the four
corners of the complaint together with the documents attached to the complaint as exhibits, and
any documents incorporated in the complaint by reference.” Peter F. Gaito Architecture, LLC v.
Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010) (quotation marks omitted).
Defendants argue that Plaintiff’s design defect claim should be dismissed because
Plaintiff does not allege that Defendants had control over the design, (Defs.’ Mem. 5–6); that
Defendant’s quantum meruit claim is barred by the Subcontract, (id. at 7–9); and that Plaintiff’s
negligent misrepresentation claim fails because Plaintiff does not allege a duty independent of
the Subcontract, (id. at 10–11), and because Plaintiff does not allege any specific false
statements, (id. at 11–12). The Court considers each argument to the extent necessary.
1. Design Defect
Defendants argue that Plaintiff’s design defect claim should be dismissed because
Plaintiff does not allege that Defendants had control over the design. (Id. at 5–6.) The Court
Defendants rely primarily on the New York Court of Appeals’ case Triangle Sheet Metal
Works, Inc. v. James H. Merritt & Co., which holds that “absent a contractual commitment to the
contrary, a prime contractor is not responsible for delays that its subcontractor may incur unless
those delays are caused by some agency or circumstance under the prime contractor’s direction
or control.” 588 N.E.2d 69, 70 (N.Y. 1991) (citation omitted). The Triangle Sheet Metal court
continued that “[i]f a subcontractor wants a prime contractor to be a guarantor of job
performance, it should bargain for the inclusion in its subcontract of a provision to that effect.”
Id. At least one court has suggested that this principle applies to delays caused by design
defects. See Phoenix Elec. Contracting, Inc. v. Lehr Const. Corp., 631 N.Y.S.2d 146, 146–47
(App. Div. 1995) (finding no general contractor liability for “delay damages allegedly sustained
by . . . the electrical subcontractor as a result of . . . design and engineering changes ordered . . .
after commencement of the project”). The Second Circuit has recognized Triangle Sheet Metal
as a rule for “apportioning damages according to the relative fault of” the general contractor.
Thalle Const. Co. v. Whiting-Turner Contracting Co., 39 F.3d 412, 418 (2d Cir. 1994); see also
Port Chester Elec. Const. Corp. v. HBE Corp., 978 F.2d 820, 822 (2d Cir. 1992) (directing the
district court to “determine which, if any, of the alleged delays were attributable in whole or in
part to [the general contractor], and limit [the plaintiff’s] recovery accordingly”). At the motion
to dismiss stage, Plaintiff could satisfy this standard by alleging “that [Defendants] caused the
delay damages.” William A. Gross Const. Assocs., Inc. v. Am. Manufacturers Mut. Ins. Co., No.
07-CV-10639, 2009 WL 427280, at *8 (S.D.N.Y. Feb. 23, 2009).
Plaintiff’s Opposition cites only irrelevant case law. (See Pl.’s Mem. 3–8.) First, it cites
a case concluding that actual notice cured a plaintiff’s failure to comply with a contractual notice
clause. U.S. for Use & Benefit of Petrocelli Elec. Co. v. Crow Const. Co., No. 93-CV-8387,
1999 WL 791683, at *4 (S.D.N.Y. Oct. 5, 1999). (See Pl.’s Mem. at 4.) Second, it cites the
same case describing when a “no damages for delay” contractual provision can be ignored.
Crow Const. Co., 1999 WL 791683, at *5; see also U.S. for Use & Benefit of Evergreen Pipeline
Const. Co. v. Merritt Meridian Const. Corp., 95 F.3d 153, 167 (2d Cir. 1996) (same); Arnell
Constr. Corp. v. N.Y.C. Sch. Constr. Auth., 112 N.Y.S.3d 169, 172–73 (App. Div. 2019)
(explaining limits to “no damages for delay” contractual provisions). (See Pl.’s Mem. 4–7.)
Neither a notice clause nor a “no damages for delay” clause is at issue in the Motion. (See Defs.’
Reply 1–3.) Nor does the court in Crow Const. Co. suggest that “notifying a prime contractor of
alleged deign defects could make a prime contractor liable for an entire project design,” a
holding that Defendants’ correctly argue would render meaningless the rule from Triangle Sheet
Metal. (Id. at 2.)
Plaintiff refers to contractual provisions suggesting that Defendants own the Project
design. (See Pl.’s Mem. 6–7; see also Barriere Affirmation Ex. B (“Subcontract”) 21 (Dkt. No.
20-4).)5 However, the SAC does not allege that such ownership makes Defendants responsible
for design defects. (See generally SAC.) Nor does the Subcontract suggest as much on its face.
Indeed, the referenced provision appears to simply reserve to Defendants various rights,
including “unrestricted use of the models and sale of the models to third parties for their
unrestricted use.” (Subcontract 21 (Dkt. No. 20-4).)
Finally, Plaintiff does not allege that it “bargain[ed]” for Defendants “to be . . .
guarantor[s] of job performance.” Triangle Sheet Metal, 588 N.E.2d at 70. Thus, Plaintiff’s first
cause of action for defective design is dismissed.6
2. Quantum Meruit
Defendants argue that Plaintiff cannot maintain its cause of action for quantum meruit
because of the Subcontract. (Defs.’ Mem. 7–9.) At this early stage, the Court disagrees.
“Recovery under the theory of quantum meruit is not appropriate where . . . an express
contract governed the subject matter involved.” Parker Realty Grp., Inc. v. Petigny, 929 N.E.2d
387, 387 (N.Y. 2010); see also Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 516 N.E.2d 190,
193 (N.Y. 1987) (holding, where the plaintiff chooses to perform on the contract and sue to
recover damages, that it is “limited to recovery of damages on the contract, and may not seek
recovery based on an alleged quasi contract”). Courts have extended this principle to
In referring to the Subcontract, the Court refers to the ECF-generated page number in
the upper right-hand corner along with the docket number.
The Motion focuses narrowly on Defendants’ lack of involvement with “the incomplete
and incorrect design provided by the Owner.” (Defs.’ Mem. 3.) Thus, this Opinion & Order
takes no position on Plaintiff’s allegations about Defendants’ conduct that are made under the
heading of its defective design cause of action, but realleged in its subsequent causes of action.
These include that Defendants failed to approve change orders, (SAC ¶¶ 37, 45, 53), gave
wasteful instructions, (id. ¶¶ 49–51), and failed to respond to Plaintiff’s notices of design defects,
(id. ¶¶ 35, 57).
circumstances “where there exists a contract governing how payment for extra work will be
determined.” Aviv Const., Inc. v. Antiquarium, Ltd., 687 N.Y.S.2d 344, 345 (App. Div. 1999);
see also Gemma Power Sys., LLC v. Exelon W. Medway II, LLC, No. 19-CV-705, 2019 WL
3162088, at *5 (S.D.N.Y. July 1, 2019) (same); LeChase Constr. Servs., LLC v. Escobar Constr.,
Inc., No. 18-CV-1021, 2019 WL 2743637, at *8–9 (N.D.N.Y. July 1, 2019) (dismissing quantum
meruit claim where “the [s]ubcontract . . . contemplated extra work”), reconsideration denied,
2019 WL 6836990 (N.D.N.Y. Dec. 16, 2019). Defendants argue that the Subcontract contains
such a clause. (See Subcontract 7 (Dkt. No. 20-2) (“No . . . adjustment [in the Subcontract
amount or schedule of work] shall be made for any such changes performed by the [Plaintiff]
that have not been so ordered by the [Defendants] in writing.”).)
However, “[w]here there is a bona fide dispute as to  whether a relevant contract exists
or  covers the disputed issue . . . courts have permitted plaintiffs to pursue both unjust
enrichment and breach of contract claims.” Marshall v. Hyundai Motor Am., 51 F. Supp. 3d 451,
471–72 (S.D.N.Y. 2014). In such circumstances, courts regularly allow plaintiffs “to plead both
contract and quasi-contract claims in the alternative.” Beach v. Touradji Cap. Mgmt. L.P., 927
N.Y.S.2d 41, 42 (App. Div. 2011); Gemma Power Sys., 2019 WL 3162088, at *12 (holding that
“at an early stage in litigation, it may be possible to plead both [a quasi-contract claim and a
breach of contract claim] in the alternative—provided there is” one of several types of dispute,
including “a bona fide dispute about the existence of a contract” or “a bona fide dispute about
whether the contract covers the full scope of a plaintiff’s allegations”); Szymczak v. Nissan N.
Am., Inc., No. 10-CV-7493, 2011 WL 7095432, at *20 (S.D.N.Y. Dec. 16, 2011) (holding that,
even though “[u]nder New York law, a party cannot be successful on both a breach of contract
claim and a claim for unjust enrichment,” that “[the] [p]laintiffs’ alternative claims for breach of
contract and for unjust enrichment can and should survive to discovery, and . . . will not be
dismissed for having been pleaded in the alternative”); Air Atlanta Aero Eng’g Ltd. v. SP
Aircraft Owner I, LLC, 637 F. Supp. 2d 185, 195–96 (S.D.N.Y. 2009) (“Courts have permitted
pleading in the alternative in the face of a written agreement, however, when there is a dispute as
to the agreement’s validity or enforceability.”). Plaintiff argues that the Subcontract does not
cover unapproved and unresolved change orders. (Pl.’s Mem. 9.)
While the Parties’ briefing focuses on whether the Subcontract covers the unapproved
and unresolved change orders, the Court takes no stance on this issue, because at this stage the
validity of the Subcontract remains in dispute. Plaintiff’s sixth and seventh causes of action—
alleging a cardinal change and constructive contract rescission—both claim that the Subcontract
is invalid. (See SAC ¶¶ 112–40.) If Plaintiff prevails on one or both of these causes of action, it
may be able to recover in quantum meruit. See Laquila Grp., Inc. v. Hunt Const. Grp., Inc., 997
N.Y.S.2d 99, 2014 WL 2919334, at *11–12 (N.Y. Sup. 2014) (“As the plaintiff’s surviving
cardinal-change claim preserves the possibility of quasi-contractual recovery, dismissal must
also be denied as to plaintiff’s quantum meruit . . . claims. . . . [T]he finding of an absence of a
valid, enforceable contract, a prerequisite to quantum meruit recovery, would inherently render
[the Subcontract’s extra work clause] unenforceable . . . .”); Eli Attia Architects v. Safra, No. 94CV-2928, 1996 WL 480721, at *6 (S.D.N.Y. Aug. 23, 1996) (“The doctrine of quantum meruit
allows a plaintiff to recover even where an express contract has been rescinded . . . .”).7 Thus, at
this early stage, the Court declines to dismiss Plaintiff’s quantum meruit claims.
The Court likewise rejects Defendants’ argument that, because it explicitly incorporates
Plaintiff’s breach of contract claims, Plaintiff’s quantum meruit count is “internally inconsistent
and subject to dismissal.” (See Defs.’ Mem. 8.) See Aviv Constr., 687 N.Y.S.2d at 345. The
Court will not adopt this unnecessarily formalist view at the cost of not allowing Plaintiff to
plead alternative theories of liability. See Kruse v. Wells Fargo Home Mortg., Inc., 383 F.3d 49,
3. Negligent Misrepresentation
Defendants argue that Plaintiff’s negligent misrepresentation claim fails because it does
not allege a duty independent of the Subcontract, (Defs.’ Mem. 10–11), and because Plaintiff
does not allege any specific false statements, (id. at 11–12). The Court agrees with Defendants’
second argument, and thus does not address its first.
To plead a claim for negligent misrepresentation, Plaintiff must allege “(1) the existence
of a special or privity-like relationship imposing a duty on the defendant to impart correct
information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on
the information.” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 490 (2d Cir. 2014).
Plaintiff fails to allege that specific representations were incorrect. Instead, it vaguely
alleges “negligent misrepresentation with regard to the Project’s design, sequencing,
scheduling[,] and coordination.” (SAC ¶ 92.) Indeed, the SAC does not allege any specific
representations made by Defendants. (See generally id.) This level of generality does not
plausibly allege a misrepresentation. See Bel Canto Design, Ltd. v. MSS HiFi, Inc., No. 11-CV6353, 2012 WL 2376466, at *16 (S.D.N.Y. June 20, 2012) (holding that the plaintiff must allege
“where, when and to whom” a statement was made to “plausibly state a claim for relief”); cf. In
re Bernard L. Madoff Inv. Sec. LLC, 531 B.R. 345, 352 (S.D.N.Y. 2015) (affirming a bankruptcy
court’s finding that alleged misrepresentations were “conclusory” where “[the] [c]omplaint [did]
not provide any specific misrepresentations”). The SAC’s most specific claim is that “[t]he
Project design under the Subcontract was to be . . . LOD300,” (SAC ¶ 20), that this level of
development was “promised in the Subcontract,” (id. ¶ 21), and that the Project design did not
55 n.3 (2d Cir. 2004) (“Federal Rule of Civil Procedure 8(e)(2) permits pleading inconsistent
theories in the alternative.”).
meet this standard, (id. ¶¶ 28–30). But the SAC does not allege a specific representation
regarding the level of design in the Subcontract. (See SAC.)8,9 And the SAC’s “sparse and
conclusory allegations” do not suffice to plead an actionable misrepresentation. Lenard v.
Design Studio, 889 F. Supp. 2d 518, 531 (S.D.N.Y. 2012). Finally, while the Parties dispute
whether the heightened pleading standard for alleging fraud under Rule 9(b) applies, (Defs.’
Mem. 11–12; Pl.’s Mem. 12), see Fed. R. Civ. P. 9, the Court finds that “even assuming that 9(b)
does not apply, plaintiff should at least identify the statement(s) upon which it is basing the
claim.” @Wireless Enterprises, Inc. v. AI Consulting, LLC, No. 05-CV-6176, 2006 WL
3370696, at *13 n.12 (W.D.N.Y. Oct. 30, 2006).10 Thus, Plaintiff’s negligent misrepresentation
claim is dismissed.
For the foregoing reasons, Defendants’ Motion To Dismiss is granted in part and denied
in part. It is granted with respect to Plaintiff’s defective design and negligent misrepresentation
Nor is such a representation obvious from reviewing the Subcontract. The Subcontract
does state that “[t]he [Defendants’] Modeling and Building Information Modeling process aims
to improve construction delivery by enhancing quality and creating efficiencies.” (Subcontract
16 (Dkt. No. 20-4).) But this does not appear to promise a particular level of development.
Because the Court takes no position on Defendants’ alternative argument, it assumes
without deciding that a misrepresentation made within the Subcontract may be the basis of a
negligent misrepresentation claim. Cf. Duane Thomas LLC v. 62 Thomas Partners, LLC, 751
N.Y.S.2d 441, 442 (App. Div. 2002) (finding that the plaintiff could not maintain a cause of
action for fraud because their claim was “based solely on alleged misrepresentations in the
contract . . . [and] the complained-of misrepresentations [were] not collateral or extraneous to the
The Court does not find persuasive cases from prior to Twombly that did not require
that misrepresentations be pleaded with specificity. See, e.g., Bruno v. Shoreline Oil Co., No.
87-CV-9175, 1988 WL 142476, at *4 (S.D.N.Y. Dec. 27, 1988) (holding that a “complaint [that]
sets forth conclusory allegations . . . , but does not allege any specific misrepresentations” is
“sufficient to withstand a motion to dismiss, [but] these allegation alone would most likely not
withstand a motion for summary judgment”).
claims. It is denied with respect to Plaintiff’s quantum meruit claim. Because this is the first
adjudication of Plaintiff’s defective design and negligent misrepresentation claims, those claims
are dismissed without prejudice. Plaintiff may file an amended complaint within 30 days of the
date of this Opinion & Order. The Court will hold a conference on June 8, 2021 at 10:00 A.M.
The Clerk of the Court is respectfully requested to terminate the pending Motion, (Dkt.
March 31, 2021
White Plains, New York
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE
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