The following documents were read in connection with the multiple motions for summary judgment:

Defendant, Rosenberg's, Notice of Motion, Affirmation, Affidavit, Exhibits1- 14 [*2]

Defendant, Rosenberg's, Memorandum of Law15

Defendants,' Willow and Larkin's, Notice of Motion, Affidavit, Exhibits16-25

Defendants,' Willow and Larkin's, Memorandum of Law26

Defendants', DRI and Rosenberg's, Affirmation in Opposition27

Plaintiffs' Opposition, Cross-Motion, Memorandum, Affidavits, Exhibits28-44

Plaintiffs' Opposition, Cross-Motion, Memorandum, Affidavits, Exhibits45-61

Defendants,' Willow and Larkin's, Reply Memorandum62

Defendants,' DRI and Rosenberg's, Reply Affirmation63

Plaintiffs commenced this action on June 10, 2011 for breach of contract, breach of warranty, negligence, violation of Article 36-A of the General Business Law, and other relief in connection with remodeling work and construction of an addition to the plaintiffs' residence. The defendant, Dyan Rosenberg, principal of Dyan Rosenberg, Inc. ("DRI"), moves for summary judgment pursuant to CPLR § 3212, dismissing the plaintiffs' claims against her individually. The defendants, John Larkin and Willow Woodworking, Inc. ("Willow"), also move pursuant to CPLR § 3212 for summary judgment dismissing the complaint and cross-claims asserted against them.

The plaintiffs oppose defendants' motions, and purportedly cross-move for summary judgment against the defendants.

For the reasons set forth at length below, the Court grants the motions for summary judgment submitted by defendants, Dyan Rosenberg and John Larkin, dismissing plaintiffs' claims against them individually. The Court grants Willow's motion for summary judgment to the extent of dismissing the causes of action based upon negligence, violations of Article 36-A of the General Business Law and the Administrative Code of the County of Westchester, and an accounting, as well as DRI's cross-claim for contribution. The plaintiffs' cross-motion is denied.

DRI is a New York corporation, which also does business as Roseclyff Design/Build. Dyan Rosenberg is the President and sole shareholder of DRI. DRI is a design and project management company, which has never held a license to conduct business as a home improvement contractor.

Willow is also a New York corporation and holds a home improvement contractor's license. John Larkin is a principal and 50% shareholder of Willow.

Plaintiffs hired DRI for design, project management, and decorating services for an addition to and remodel of their residence located at 1743 Clover Road, Mohegan Lake, New York. Plaintiffs and DRI, along with architect, Teo Siguenza, who is not a party to this action, entered into a written agreement dated July 20, 2005, for certain work to be performed on the residence. The agreement sets forth three phases of design and architectural services, including the preparation of schematic plans, working drawings, and construction documents. DRI and Teo Siguenza were to receive a flat [*3]fee of $30,000.00 for this work based upon an estimated budget of $250,000.00.

The contract contained a one-page addendum executed by the plaintiffs and DRI, whereby DRI agreed to act as the Project Manager and oversee the selection of contractors, materials used, and supervise the construction of the addition, which included consulting with the architect and contractors. The plaintiffs agreed to pay DRI a separate fee of 12% of the contractors' bills to manage the project, which was to be paid to DRI at the same time as payment was made to the contractor. The agreement also provided that DRI would charge plaintiffs 25% of the purchase price of items, such as carpeting, kitchen cabinets, and countertops for decorating services. Plaintiffs agreed to pay all contracting and decorating bills directly to the vendors.

DRI had used Willow on various projects in the past, including construction on Dyan Rosenberg's own residence. The plaintiffs indicated that they wanted the same contractors DRI had used in the past, including Willow. In 2006, Willow was selected as the contractor to perform the work on the residence in accordance with the plans. Other than invoices submitted by Willow to the plaintiffs for work completed, there was no written agreement governing Willow's work at the project, either with the plaintiffs or with DRI.

Willow performed its work in 2006 and 2007, which included remodeling the existing premises and constructing an addition. DRI was present on the jobsite to supervise the work several days each week for the duration of the project. According to Willow, it substantially completed its work by September 2007 and finished all punch list items by December 2007. DRI sent its last invoice to the plaintiffs on October 17, 2007.

The plaintiffs paid Willow approximately $375,000.00 and paid DRI approximately $90,000.00 to complete the work. All of DRI's work was billed on DRI letterhead. DRI deposited all of plaintiffs' payments into the DRI corporate bank account, from which account all expenses were paid. Similarly, Willow had its own corporate bank account into which all checks made payable to Willow were deposited. Although plaintiffs claim that some of the checks were made payable to Dyan Rosenberg and John Larkin, individually, this claim is conclusory and not supported by any of the documents submitted with the motions.

Thereafter, the plaintiffs noticed problems with the construction about which they claim they notified the defendants. Plaintiffs claim that most of these defects went undetected until 2010 and 2011, and they had no reason to know of these defects earlier with the exercise of due diligence. Despite being assured by the defendants that the defective conditions would be corrected, plaintiffs claim the defendants have failed and refused to do so. Plaintiffs claim that the defendants failed to substantially complete the work since there were numerous defects resulting from the defendants' inferior construction practices and materials. DRI referred all of plaintiffs' complaints to Willow to correct. Willow claims the complaints are related to maintenance issues, which are unrelated to its work.

Plaintiffs' complaints include: improperly installed or the failure to install basement and attic [*4]insulation; improper attic and roof ventilation; improper flashing around the windows; use of inferior or improper construction materials; misaligned sliding doors and improperly installed closets doors and kitchen cabinets; and water infiltration inside the residence due to poor construction methods and procedures, causing wood rot and toxic mold, and requiring replacement of exterior trim and the porch, and numerous other remedial measures.

In 2010, plaintiffs retained John Beers to correct the defective conditions. They claim they paid him and other contractors over $70,000.00 to repair the damage due to the defendants' defective work.

Plaintiffs submit an affidavit from John Beers, as an expert, who states that the water infiltration, wood rot, and mold condition were caused by the defendants' inferior construction practices and improper monitoring and supervision of the work. The plaintiffs also submit an uncertified inspection report of the residence conducted on March 14, 2011, which indicates high moisture readings in some walls, siding, and trim, and a mold condition on walls in the basement. Plaintiffs submit an estimate from Envirocare, a remediation company, recommending the removal of mold contaminated drywall and insulation.

Plaintiffs commenced this action on or about June 10, 2011 seeking monetary damages for property damage, only. Plaintiffs' complaint alleges eight causes of action as follows: breach of contract; violation of General Business Law § 771; negligence; breach of warranty; rescission of contract and civil penalties for violations of Article 36-A of the General Business Law and Westchester County laws; right to an accounting of costs and expenses; and declaratory relief. The defendants served answers to the complaint denying the material allegations and asserting various affirmative defenses and cross-claims. Although the plaintiffs' complaint alleges only property damage, in their motions, plaintiffs claim they suffered respiratory symptoms warranting medical care as a result of the water infiltration and mold contamination.

DRI now moves for summary judgment pursuant to CPLR § 3212, dismissing the claims of plaintiffs against her individually. John Larkin and Willow also move pursuant to CPLR § 3212 for summary judgment dismissing the complaint and cross-claims asserted against them.

The plaintiffs oppose defendants' motions, and purportedly cross-move for summary judgment against the defendants. These cross-motions lack any hallmarks of a notice of a cross-motion, including a return date or the requisite notice for the timing of responsive papers (see CPLR §§ 2214, 2215). Moreover, plaintiffs' purported cross-motions are untimely, as they were filed in violation of the Trial Readiness Order requiring all motions to be served and filed within 60 days of the filing of the note of issue. The note of issue was filed on September 21, 2012 and the cross-motions were filed on December 19, 2012, almost 90 days thereafter. The plaintiffs fail to address the lateness of their cross-motions, nor do they submit any good cause for the lateness of their papers (see Van Dyke v Skanska USA Civil Northeast, Inc., 83 AD3d 1049 [2d Dept 2011]; Armentano v Broadway Mall Properties, Inc., 48 AD3d 493 [2d Dept 2008]). As such, plaintiffs' untimely cross-motions for summary judgment will be considered only on those issues that are nearly identical to [*5]the relief sought in the timely-filed motions since "the issues raised by the untimely cross motion are already properly before the motion court and, thus, the nearly identical nature of the grounds may provide the requisite good cause" (Homeland Ins. Co. of New York v National Grange Mut. Ins. Co., 84 AD3d 737, 738-739 [2d Dept 2011]).

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1980]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hospital, 68 NY2d at 324).

While the general rule is that a party opposing the motion must make a showing of evidentiary proof in admissible form, under certain circumstances, "courts have recognized that proof which might be inadmissible at trial may, nevertheless, be considered in opposition to a motion for summary judgment" (Guzman v Strab Construction Corp., 228 AD2d 645 [2d Dept 1996]). "Rules of evidence should be guardedly and cautiously applied on an application for summary judgment, particularly where there are many exceptions to general rules and where the application of a rule of evidence or the exceptions thereto can best be determined upon evidence offered at a trial" (Phillips v Joseph Kantor & Co., 31 NY2d 307, 311-312 [1972]).

The papers submitted in support of and in opposition to a motion for summary judgment must be examined in a light most favorable to the party opposing the motion and the motion must be denied if there is any doubt as to the existence of a triable issue of fact (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1979]; Martin v Briggs, 235 AD2d 192, 196 [1st Dept 1997]).

"Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. Where the court entertains any doubt as to whether a triable issue of fact exists, summary judgment should be denied" (Daliendo v Johnson, 147 AD2d 312, 317 [2d Dept 1989]). "Moreover, the burden on the court deciding this type of motion is not to resolve issues of fact or determine matters of credibility but merely to determine whether such issues exist" (id.). "It is the existence of an issue, not its relative strength that is the critical and controlling consideration" (Liang v Vanegas, 2011 WL 6131093, 2011 Slip Op 33127 [U] [Sup Ct NY Co, 2011], citing Barrett v Jacobs, 255 NY 520 [1931]; Cross v Cross, 112 AD2d 62, 64 [1st Dept 1985).

Personal Liability of Dyan Rosenberg and John Larkin [*6]

Plaintiffs seek to hold both Dyan Rosenberg, principal of DRI, and John Larkin, principal of Willow, personally liable for all of the alleged damages sustained to the residence as a result of the their alleged negligence, breach of contract, and breach of warranties.

"The general rule . . . is that a corporation exists independently of its owners, who are not personally liable for its obligations, and that individuals may incorporate for the express purpose of limiting their liability. The concept of piercing the corporate veil is an exception to this general rule, permitting, in certain circumstances, the imposition of personal liability on owners for the obligations of their corporation" (East Hampton Union Free School District v Sandpebble Builders, Inc., 66 AD3d 122, 126 [2d Dept 2009][internal citations omitted]).

The court will not lightly disregard the corporate form and will pierce the corporate veil only to prevent illegality, fraud, or to achieve equity (see New York Association for Retarded Children, Inc., Montgomery County, 199 AD2d 921, 922 [3d Dept 1993]). A party seeking to pierce the corporate veil must show that the owners of the corporation exercised complete domination over it in the transaction at issue, and that such domination was used to commit a fraud or wrong against the plaintiff under circumstances that constitute an abuse of the privilege of doing business in the corporate form (Matter of Morris v New York State Dept. of Taxation and Fin., 82 NY2d 135, 140-141 [1993]; Nassau County v Richard Dattner Architect, P.C., 57 AD3d 494, 495 [2d Dept 2008]).

"The decision whether to pierce the corporate veil in a given instance depends on the particular facts and circumstances" (Weinstein v Willow Lake Corp., 262 AD2d 634, 635 [2d Dept 1999]). Factors to be considered in determining whether the owner has "abused the privilege of doing business in the corporate form" include whether there was a "failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, and use of corporate funds for personal use" (East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d 122, 127 [2d Dept 2009]). Other factors include the intermingling of corporate and personal funds, an overlap in ownership, officers, directors and personnel, and the common use of office space, equipment, addresses and phone numbers (id; Forum Ins. Co. v Texarkoma Tr. Co., 229 AD2d 341 [1st Dept 1996]).

Both Rosenberg and Larkin have established their prima facie entitlement to summary judgment dismissing the claims of plaintiffs against them in their individual capacities. In opposition, the plaintiffs have failed to demonstrate any reason why this Court should disregard the corporate identities of either DRI or Willow. Plaintiffs claim that both Larkin and Rosenberg "assumed and exercised the rights of sole ownership over the monies, properties, assets and opportunities" of their corporations, and "took profits . . . in the form of salary, distributions, and payments" and therefore, the defendants should be individually liable. Plaintiffs do not allege that the defendants engaged in fraud and there is no showing that either Rosenberg or Larkin abused the privilege of doing business in the corporate form or received any funds in advance of the home improvements and diverted the funds for other purposes. The written contract was between the plaintiffs and DRI, and not with Rosenberg personally. All invoices by Willow and DRI were on [*7]their corporate letterhead. Although alleged, the plaintiffs have failed to establish that they issued any checks made payable to the defendants in their individual capacity for work performed on this job. The individual defendants adhered to corporate formalities, and kept corporate assets separate from personal assets. There is no showing that Rosenberg or Larkin intended to bind themselves personally.

Merely because the defendants offered the plaintiffs certain assurances about the work does not create personal liability. And, although DRI acted through its president, Dyan Rosenberg, and Willow acted through its president, John Larkin, corporations act through individuals. "[I]f, standing alone, domination over corporate conduct in a particular transaction were sufficient to support the imposition of personal liability on the corporate owner, virtually every cause of action brought against a corporation either wholly or principally owned by an individual who conducts corporate affairs could also be asserted against that owner personally, rendering the principle of limited liability largely illusory" (East Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d at 126). Simply because the plaintiffs thought they were dealing with the defendants as individuals is insufficient to pierce the corporate veil. Plaintiffs made no showing that either Rosenberg or Larkin abused their privilege of doing business in the corporate form.

Since the plaintiffs fail to raise any issue of fact regarding any of the elements required to pierce the corporate veil of DRI or Willow and hold either Rosenberg and Larkin liable in their individual capacities, both John Larkin and Dyan Rosenberg are entitled to summary judgment dismissing the complaint against them.

Willow's Motion for Summary Judgment

The defendant Willow moves for summary judgment dismissing the plaintiffs' complaint against it on the grounds that there was no contract between it and the plaintiffs, the plaintiffs' claims are barred by the statute of limitations, the claims are directed against DRI only, and because the claims fail to state any legally cognizable causes of action. Willow also moves for summary judgment dismissing DRI's cross-claims against it for indemnity and contribution.

Cause of Action for Breach of Contract and Breach of Warranty

Plaintiffs' first cause of action for breach of contract makes reference to all defendants having a contract with plaintiffs, but cites only the July 21, 2005 letter agreement between DRI and the plaintiffs. Willow is not a party to that particular agreement. Willow submits that it did not prepare a home improvement contract since it never had any agreement with the plaintiffs to perform the work, and based upon the absence of a written home improvement contract, it is entitled to summary judgment dismissing plaintiffs' breach of contract action against it. Willow argues that it was hired by DRI to perform the work on the plaintiffs' residence and that Willow had no agreement with the plaintiffs. DRI disputes this claim and alleges it merely introduced plaintiffs to Willow and thereafter, plaintiffs independently engaged Willow to perform the construction and remodel work according to the plans and specifications of the architect. Plaintiffs support DRI's position, claiming [*8]in their opposition papers/cross-motion that a contract exists between themselves and Willow.

The written contract between plaintiffs and DRI, together with the parties' practices during the construction, establishes that Willow performed work for the plaintiffs on an invoice-by-invoice basis. It is undisputed that Willow presented its invoices directly to the plaintiffs on a regular basis, and that the plaintiffs paid Willow directly for the work referenced in the invoices, without objection. Indeed, this course of conduct establishes privity between the plaintiffs and Willow. Furthermore, an invoice that represents a meeting of the minds between the parties may serve as a basis for a breach of contract claim (see generally New York City Housing Authority v Fosroc Inc., 226 AD2d 103 [1st Dept 1996]; McPherson v Husbands, 54 AD3d 735, 736 [2d Dept 2008]). Here, issues of fact are present concerning whether each invoice constitutes a separate agreement with the plaintiffs and whether Willow breached its agreements by not performing its work in accordance with the terms represented by the invoices (see generally Finch, Pruyn & Co. Inc. v Niagara Paper Co., Inc., 228 AD2d 834 773, 775 [3d Dept 1996]).

Moreover, although the plaintiffs argue that the home improvement contract is unenforceable because of Willow's violations of GBL § 771, this does not thwart the plaintiffs' claim for breach of contract (West Park Assoc., Inc. v Cohen, 43 AD3d 818, 819 [2d Dept 2007]).

Willow's failure to meet its initial burden of demonstrating the absence of a contract between the parties requires a denial of this portion of its motion and gives the plaintiffs the opportunity to establish the merits of its cause of action against Willow on a contract theory (Schenectady, Air Systems, Inc. v Campito Plumbing & Heating, Inc., 84 AD2d 863, 864 [1981]).

Since the invoices issued by Willow, together with the checks tendered by the plaintiffs, establish privity between the plaintiffs and Willow, Willow's motion for summary judgment dismissing the fourth cause of action for breach of warranty is also denied. In this cause of action, plaintiffs claim the defendants owed them a warranty that the work would be of a certain quality and consistency, and Willow breached this duty when it poorly constructed the home in an incompetent and unworkmanlike manner.

"As a general rule, there is implied in every contract for work or services a duty to perform it skillfully, carefully, diligently and in a workmanlike manner" (NY Prac, Contract Law §11:14 [Note: online treatise]). Therefore, the absence of any express terms regarding the performance of the work is not fatal, as Willow is bound by an implied promise to perform the contract in a skillful and workmanlike manner (see generally Lino Del Zotto & Son Builders Inc., v Colombe, 216 AD2d 778, 779 [3d Dept 1995]; Fairbairn Lumber Corp. v Telian, 92 AD2d 683, 684 [3d Dept 1983]). Therefore, that portion of defendant Willow's motion seeking summary judgment dismissing plaintiffs' breach of warranty cause of action is denied.

Cause of Action for Negligence

Willow moves to dismiss the negligence cause of action based on the three-year statute of [*9]limitations set forth in CPLR § § 214 (4) and 214-c (2). Willow alleges that all the work on the residence was completed by the end of 2007, and the plaintiffs commenced this action by filing the summons and complaint on June 10, 2011, which was after the three-year statute of limitations expired. However, since the plaintiffs' claims are for property damage only and are grounded in the breach of a construction contract, the claims are governed by the six-year statute of limitations under CPLR § 213 (see Felice v American A.W.S., Corp., 46 AD3d 505, 506 [2d Dept 2007]).

"It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated. This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract" (Anderson v Nottingham Vil. Homeowner's Assn. Inc., 37 AD3d 1195, 1197 [4th Dept 2007]).

The case of Felice v American A.W.S., Corp., is strikingly similar in its facts and is instructive on the issues raised here. In Felice, the plaintiffs entered into a home improvement contract with the defendant American to renovate their house and, in turn, American subcontracted a portion of the work to defendant AGA. The plaintiffs commenced an action against both American and AGA for property damage and personal injuries, alleging that AGA negligently performed its work, resulting in water leaks and mold formation. AGA moved to amend its answer to assert an affirmative defense of statute of limitations, contending that the causes of action sounding in negligence were governed by a three-year statute of limitations. The Appellate Division, Second Department, denied the motion to amend the complaint with respect to the claims for property damage, holding that such claims did not give rise to any tort liability, as they were grounded in the breach of a construction contract and there was no breach by the defendants of any legal duty independent of the contract itself.

Here, plaintiffs' property damage causes of action are based upon the breach of a home improvement contract, and the complaint does not allege the breach of any independent legal duty by Willow. Accordingly, the cause of action sounding in negligence is dismissed.

Causes of Action Pursuant to Article 36-A of the General Business Law and the Administrative Code of the County of Westchester

Willow also moves to dismiss plaintiffs' second and sixth causes of action pursuant to Article 36-A of the General Business Law and § 863.319 (1) (c) of the Administrative Code of the County of Westchester, as being time barred by the three-year statute of limitations set forth in CPLR § 214 (2), which governs claims created by statute. The plaintiff maintains that the statute of limitations should be six years based upon the breach of contract claim. For the reasons discussed here, the Court finds that the three-year statute of limitations under CPLR § 214 (2) applies to these causes of action and accordingly, dismisses these claims.

CPLR § 214 (2) imposes a three-year statute of limitations on claims to recover upon a liability, penalty or forfeiture created or imposed by statute. However, it "does not automatically [*10]apply to all causes of action in which a statutory remedy is sought, but only where liability would not exist but for a statute'" (Gaidon v Guardian Life Insurance Company of America, 96 NY2d 201, 208 [2001]). Where a claim provided for by statute merely codifies or implements an existing common-law liability, the statute of limitations for the statutory claim is that for the common-law cause of action (id.; Motor Vehicle Acc. Indemnification Corp.v Aetna Cas. & Sur. Co., 89 NY2d 214, 220 [1996]).

General Business Law Article 36-A, which governs home improvement contracts, sets forth new and independent statutory rights and protections for consumers, as well as obligations for contractors. Specifically, GBL § 771 requires that all home improvement contracts be in writing and contain the name, address, telephone number, and license number of the contractor, the approximate dates of the work and completion date, a description of the work and materials, and the cost and manner of payment. GBL § 771 also requires that the contract give notice to the homeowner of the contractor's right to place a mechanic's lien on the property, the homeowner's right to cancel the home improvement contract within three days, and the contractor's obligation to take certain measures to guarantee the return or proper application of payments to the purposes of the contract. Section 863.310 of the Administrative Code of the County of Westchester contains some of the same consumer protections as Article 36-A of the General Business Law.

Pursuant to GBL § 772, a homeowner who relies on false written statements of a contractor may sue and recover from the contractor a penalty of $500.00, plus reasonable attorney's fees, in addition to any damages caused by the false representations. Under GBL § 773, a homeowner may sue and recover from the contractor civil penalties up to $2,500.00 for each contract for violations of Article 36-A of the General Business Law.

In the instant case, the plaintiffs seek to rely upon the favorable consumer protections codified in Article 36-A of the General Business Law and the Administrative Code of Westchester County to rescind the contract and recover civil penalties from Willow. Since these causes of action do not merely codify common-law principles of contract law, but create "new and independent statutory rights and obligations" to protect consumers engaging the services of home improvement contractors, the three-year statute of limitations under CPLR § 214 (2) applies (see Motor Vehicle Acc. Indemnification Corp.v Aetna Cas. & Sur. Co., 89 NY2d at 220; Gaidon v Guardian Life Insurance Company of America, 96 NY2d at 208; Hartnett v New York City Transit Authority, 200 AD2d 27, 29 [2d Dept 1994]).

"A cause of action against a contractor for defects in construction generally accrues upon completion of the actual physical work" (see Cabrini Medical Center v Desina, 64 NY2d 1059 [1985]; Town of Islip v H.T. Schneider Associates, 73 AD3d 1029 [2d Dept 2010]). Since Willow's work was substantially completed by December 2007, at the latest, and this action was not commenced until June 2011, plaintiffs' claims based upon Article 36-A of the General Business Law and the Administrative Code of the County of Westchester are barred by the statute of limitations and accordingly, are dismissed.

[*11]Cause of Action for an Accounting

"The right to an accounting is premised upon the existence of a confidential or fiduciary relationship and a breach of the duty imposed by that relationship respecting property in which the party seeking the accounting has an interest" (AHA Sales, Inc. v Creative Bath Products, Inc., 58 AD3d 6, 23 [2d Dept 2008]). "[A] conventional business relationship, without more, is insufficient to create a fiduciary relationship [citations omitted]. Rather, a plaintiff must make a showing of "special circumstances" that could have transformed the parties' business relationship to a fiduciary one'" (id. at 21-22).

Willow has established that it had a conventional business relationship with the plaintiffs, satisfying its prima facie burden of establishing its entitlement to summary judgment dismissing the cause of action for an accounting. In opposition, the plaintiffs fail to raise any issue of fact that they had a fiduciary relationship with Willow and that Willow breached any duty imposed by that relationship (see LoGerfo v Trustees of Columbia University in City of New York, 97 AD3d 547, 548 [2d Dept 2012]). As such, Willow's motion for summary judgment dismissing plaintiffs' seventh cause of action is granted.

Cause of Action for Declaratory Relief

Plaintiff's eighth cause of action seeks a declaration that DRI is a home improvement contractor subject to the home improvement laws of New York State and of Westchester County. This claim is against DRI only and not Willow. As such, Willow's motion for summary judgment dismissing this cause of action against it is denied since it is not applicable to Willow.

Cross-Claims for Indemnification and Contribution

Willow seeks summary judgment dismissing DRI's cross-claims against it for contribution and indemnity. "There is a distinction to be made between contribution and indemnity. The right to contribution does not arise from contract and only ratable or proportional reimbursement is sought. However, the right to indemnity arises from a contract, express or implied, and full, not partial reimbursement is sought" (County of Westchester v Welton Becket Associates, 102 AD2d 34, 42 [2d Dept 1984]).

Indemnity "involves an attempt to shift the entire loss from one who is compelled to pay for a loss, without regard to his own fault, to another person who should more properly bear responsibility for that loss because he was the actual wrongdoer. The right to indemnification may be created by express contract, but the contract is often one implied by law to prevent an unjust enrichment or an unfair result" (County of Westchester v Welton Becket Associates, 102 AD2d at 46—47). The doctrine of implied, or common law, indemnity permits one who is held vicariously liable solely on the count of the wrongdoing of another to shift the entire burden of the loss to the actual wrongdoer (Trustees of Columbia University v Mitchell/Giurgola Associates, 109 AD2d 449, [*12]452-453 [1st Dept 1985]).

Here, DRI had a written contract with the plaintiffs to act as Project Manager and oversee the selection of the contractors and materials, and supervise the construction. While Willow had no formal contract with either DRI or the plaintiffs, Willow was the contractor who actually performed the work and submitted invoices directly to plaintiffs to get paid. Viewing the papers in a light most favorable to the party opposing the application, the Court finds triable issues of fact exist as to whether Willow's work was defective and, in turn, whether DRI supervised the alleged defective work, thereby precluding DRI's right to recovery on its implied indemnification claim. (See Rockefeller University v Tishman Construction Corp., 244 AD2d 158 [1st Dept 1997]; Rockefeller University v Tishman Construction Corp., 246 AD2d 339 [1st Dept 1998].)

The right to contribution, which is set forth in CPLR § 1401, requires some form of tort liability and does not apply to a pure breach of contract action (see Board of Education of Hudson City School District v Sargent, 71 NY2d 21, 28 [1987]). "[P]urely economic loss resulting from a breach of contract does not constitute injury to property' within the meaning of CPLR 1401" (id. at 26). "Stated another way, a defendant may not seek contribution from other defendants where the alleged "tort" is essentially a breach of contract claim'" (Rothberg v Reichelt, 270 AD2d 760 [3d Dept 2000]). Even if the complaint sets forth causes of action for negligent performance, "the determining factor as to the availability of contribution is not the theory behind the underlying claim but the measure of damages sought" (Rockefeller University v Tishman Construction Corp., 240 AD2d 341, 343 [1st Dept 1997], leave denied 91 NY2d 803 [1997]).

Here, a review of plaintiffs' complaint reveals that they are seeking to recover for a purely economic loss—namely, the cost of repairs as a result of the defendants alleged failure to perform as agreed (see Rothberg v Reichelt, 270 AD2d at 762). "In short, plaintiff[s] [are] seeking the benefit of [their] contractual bargain and, as such, no claim for contribution lies" (id.).

Based upon the foregoing, it is hereby

ORDERED, that defendant, Dyan Rosenberg's, motion pursuant to CPLR § 3212 granting her summary judgment dismissing plaintiffs' claim against her individually is granted; and it is further

ORDERED, that defendant, John Larkin's, motion pursuant to CPLR § 3212 granting him summary judgment dismissing plaintiffs' claim against him individually is granted; and it is further

ORDERED, that defendant, Willow's, motion pursuant to CPLR § 3212 granting it summary judgment dismissing plaintiffs' first and fourth causes of action against it are denied; and it is further

ORDERED, that defendant, Willow's, motion pursuant to CPLR § 3212 granting it summary judgment dismissing plaintiffs' second, third, fifth, sixth, and seventh causes of action against it is granted; and it is further [*13]

ORDERED, that defendant, Willow's, motion pursuant to CPLR § 3212 granting it summary judgment dismissing plaintiffs' eighth cause of action against it is denied, as it is not applicable to Willow; and it is further

ORDERED, that defendant, Willow's, motion pursuant to CPLR § 3212 granting it summary judgment dismissing DRI's cross-claim for indemnification is denied; and it is further

ORDERED, that defendant Willow's motion pursuant to CPLR § 3212 granting it summary judgment dismissing DRI's cross-claim for contribution is granted; and it is further

ORDERED, that plaintiff's cross-motions are denied in their entirety; and it is further

ORDERED, that all other relief requested and not decided herein is denied; and it is further

ORDERED, that all parties shall appear in the Settlement Conference Part on September 16, 2013 at 9:30 A.M. in Courtroom 1600 of the Westchester County Supreme Court, 111 Dr. Martin Luther King, Jr., Boulevard, White Plains, New York..

This constitutes the decision and order of the Court.

Dated: White Plains, New York

July 3, 2013

HON. FRANCESCA E. CONNOLLY, J.S.C.