Upon the foregoing papers it is ordered that the motion is determined as follows:

Plaintiff 126 Newton St., LLC alleges the following: On or about March 1, 2007, plaintiff 126 Newton St., LLC, the developer of property located at 128 Newton Street, Brooklyn, New [*2]York, and Tahoe Development Corp. entered into a contract with defendant Engineering Services Associates, PC (ESA) and defendant Salvatore P. Accomando, a licensed engineer, whereby the defendants undertook to "design, engineer, inspect and/or certify the HVAC system and sprinklers at the premises." The defendants did their work between March, 2007 and October, 2008. On or about November 2009, the Board of Managers of the 128 Newton Street Condominium had the premises inspected, and the board learned that the HVAC system and sprinklers did not conform to the approved plans, did not comply with the New York City Building Code, and did not function properly. The Board must repair or replace the installed equipment at a cost of $1,000,000.

This action ensued on May 1, 2013, approximately four and one-half years after the defendants completed their work.

That branch of the motion which is for an order pursuant to CPLR 3211(a)(7) dismissing the first cause of action, which is for breach of contract, is granted. A cause of action for breach of contract must "set forth the terms of the agreement upon which liability is predicated, either by express reference or by attaching a copy of the contract ***." ( Chrysler Capital Corp. v. Hilltop Egg Farms, 129 AD2d 927, 928; Valley Cadillac Corp. v. Dick, 238 AD2d 894.) Moreover, the cause of action for breach of contract is duplicative of the cause of action for professional malpractice. (See, Bruno v. Trus Joist a Weyerhaeuser Business, 87 AD3d 670.) The plaintiff's complaint is actually for professional malpractice rather than for breach of contract. ( See, Catapano v. Winthrop University Hosp., 19 AD3d 355; Lantner v. Galin, 254 AD2d 260.)

That branch of the motion which is for an order pursuant to CPLR 3211(a)(5) dismissing the second cause of action, which is for negligent misrepresentation, is granted.

A cause of action for negligent misrepresentation is subject to a three-year limitations period. (See, Country World, Inc. v. Imperial Frozen Foods Co., Inc., 186 AD2d 781.)

That branch of the motion which is for an order pursuant to CPLR 3211(a)(7) dismissing the third cause of action, which is for breach of the implied covenant of good faith and fair dealing, is granted. The plaintiff's claim for breach of the implied covenant of good faith and fair dealing is duplicative of its breach of contract claim. ( See, Lavigny Holdings Ltd. v. Coller Intern. Partners V-A, LP, 113 AD3d 424; Banc of America Securities LLC v. Solow Bldg. Co. II, L.L.C., 47 AD3d 239.)

That branch of the motion which is for an order pursuant to CPLR 3211(a)(7) dismissing the fourth cause of action, which is for unjust enrichment seeking restitution, is granted. The fourth cause of action does not adequately set forth the elements of a claim for unjust enrichment (See, Goel v. Ramachandran, 111 AD3d 783), and the existence of a valid contract between the parties precludes the plaintiff from suing on a quasi-contractual theory. ( See, IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 NY3d 132.) In any event, the fourth cause of action is duplicative of the plaintiff's cause of action for breach of contract (see, New [*3]York City Educational Const. Fund v. Verizon New York Inc., -AD3d-, - NYS2d -, 2014 WL 591046; Hoeffner v. Orrick, Herrington & Sutcliffe LLP, 61 AD3d 614) and duplicative of the cause of action for professional malpractice. (See, Mecca v. Shang,

258 AD2d 569.)

That branch of the motion which is for an order pursuant to CPLR 3211(a)(7) dismissing the fifth cause of action, which is for breach of oral agreements, is granted. The plaintiff did not adequately state the specific terms of the agreements allegedly breached.(See. Chrysler Capital Corp. v. Hilltop Egg Farms, supra; Valley Cadillac Corp. v. Dick, supra.) Moreover, the cause of action for breach of contract is duplicative of the cause of action for professional malpractice. (See, Bruno v. Trus Joist a Weyerhaeuser Business, supra.)

That branch of the motion which is for an order pursuant to CPLR 3211(a)(5) dismissing the sixth cause of action (misnumbered as the seventh), which is for professional malpractice, is granted. The plaintiff basically alleges that the defendants failed to perform engineering services in a professional, nonnegligent manner because they did not comply with the relevant building codes as promised in the parties' agreement. "A cause of action alleging professional malpractice against an engineer accrues upon the completion of performance under the contract and the consequent termination of the parties' professional relationship' ***." (M.G. McLaren, P.C. v. Massand Engineering, L.S., P.C., 51 AD3d 878, 878, quoting Town of Wawarsing v. Camp, Dresser & McKee, Inc., 49 AD3d 1100.) The defendants finished their professional services in October, 2008, but the plaintiff did not bring this action until May, 2013. Thus, the claim is barred by CPLR 214(6), the three year statute of limitations applicable to professional (other than medical) malpractice. (See, In re R.M. Kliment & Frances Halsband, Architects (McKinsey & Co., Inc.), 3 NY3d 538.) The plaintiff did not adequately raise a genuine issue of fact concerning whether the limitations period was extended pursuant to the continuous representation doctrine. (See, Rodeo Family Enterprises, LLC v. Matte, 99 AD3d 781.)

That branch of the motion which is for an order dismissing the seventh cause of action, which is for fraud, pursuant to CPLR 3211(a)(7) is granted. It is true that some claims based on fraud are not duplicative of claims based on malpractice and breach of contract. (See, Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuworth, LLC v. Comprehensive Mental Assessment & Medical Care, P.C., 110 AD3d 1022; Vermont Mut. Ins. Co. v. McCabe & Mack, LLP, 105 AD3d 837.) This is not such a case. Here, the plaintiff essentially alleges that the defendants made false representations concerning their level of skill and experience to induce the plaintiff to enter into a contractual relationship. This cause of action is duplicative of the plaintiff's causes of action for breach of contract and professional malpractice. ( See, Lax v. Design Quest NY Ltd., 101 AD3d 431 [fraud in the inducement claim based on the alleged misrepresentation by defendants of their expertise and licensing was dismissed as duplicative of the breach of contract claims that alleged defective and deficient work] Gorman v. Fowkes, 97 AD3d 726 [false representations as to ability to perform the contract] 143 Bergen Street LLC v. Ruderman, 39 Misc 3d 1203[A] [Table], 2013 WL 1285883 [Text] [false representations about [*4]expertise].)

That branch of the motion which is for an order pursuant to CPLR 3211(a)(7) dismissing the eighth cause of action, which is also for fraud, is granted with leave to the plaintiff to replead. The plaintiff essentially alleges that the defendants made false representations to it that, inter alia, the HVAC work and sprinklers were being constructed in accordance with the plans, drawings and specifications and in compliance with the Building Code. In order to state a cause of action for fraud, a plaintiff must allege (1) that the defendant made material representations that were false or concealed a material existing fact, (2) that the defendant knew the representations were false and made them with the intent to deceive the plaintiff, (3) that the plaintiff was deceived, (4) that the plaintiff justifiably relied on the defendant's representations, and (5) that the plaintiff was injured as a result of the defendant's representations. (See, Lama Holding Co. v. Smith Barney, 88 NY2d 413; New York Univ. v. Continental Ins. Co., 87 NY2d 308; Watson v. Pascal, 27 AD3d 459; Cerabono v. Price, 7 AD3d 479; New York City Transit Authority v. Morris J. Eisen, P.C., 276 AD2d 78; American Home Assur. Co. v. Gemma Const. Co., Inc., 275 AD2d 616; Swersky v. Dreyer & Traub, 219 AD2d 321.) The plaintiff failed to allege facts underlying all of these elements. The court notes that fraud must be pled with specificity. (See, CPLR 3016[b].) In view of the affidavit submitted by Anthony E. Gurino, the plaintiff's managing member, though it is itself somewhat sketchy, the plaintiff is given leave to replead.(See, Rabos v. R & R Bagels & Bakery, Inc., 100 AD3d 849.)

That branch of the motion which is for an order pursuant to CPLR 3211(a)(5) dismissing the ninth cause of action, captioned " violation of building code/ breach of statutes," is granted. The ninth cause of action is actually for professional malpractice, and such a cause of action is time-barred. (See, In re R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], supra.)

That branch of the motion which is for an order pursuant to CPLR3211(a)(7) dismissing the tenth cause of action, which is for breach of a written indemnification agreement, is denied. The plaintiff alleges that in May, 2008, defendant ESA agreed in writing to indemnify the plaintiff for claims, damages, losses, and expenses arising out of the defendants' work. The plaintiff has offered a reasonable excuse for not attaching a copy of the alleged agreement to its complaint, i.e., destruction of records by Superstorm Sandy. The court notes that General Obligations Law § 5-322.1 does not bar an owner or contractor who was not actually negligent from receiving contractual indemnification, even if the contract language purports to provide indemnification for an owner's or general contractor's own negligence. (See, Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786; Brown v. Two Exch. Plaza Partners, 76 NY2d 172; Lazzaro v. MJM Industries, Inc., 288 AD2d 440.)

That branch of the motion which is for an order pursuant to CPLR 3211(a)(7) dismissing the eleventh cause of action, which is for breach of an oral indemnification agreement and oral guarantee, is granted. The plaintiff alleges that in May, 2008, defendant Accomando verbally agreed to indemnify the plaintiff for losses and expenses arising from defendant ESA's work. General Obligations Law §5-701(a)(2) requires an agreement to be in writing if it "[i]s a [*5]special promise to answer for the debt, default or miscarriage of another person ***." It is true that not every promise of indemnity is subject to the Statute of Frauds. (See, Kessenich v. Raynor 169 F.Supp.2d 119.) For example, an oral promise to indemnify a guarantor of a debt is not an agreement to pay the debt of another that is barred by the Statute of Frauds.( See, Tucci v. Talon Seafood South, Inc., 27 AD3d 642; 28 NY Prac., Contract Law § 26:16.) However, in the case at bar, the alleged oral indemnification agreement is a promise to answer for the debts, defaults, or failures ( i.e., "miscarriages") of another, and, thus, it is barred by the Statute of Frauds. ( See, International Fidelity Ins. Co. v. Robb, 159 AD2d 687.) The plaintiff also alleges that Accomando gave his oral guarantee of defendant's ESA's work, but this oral guarantee violates the Statute of Frauds. ( See, New York Produce Trade Ass'n, Inc. v. Mazzilli, 49 AD2d 729.) Generally, a surety agreement must be in writing. ( See, Fort Howard Paper Co. v. William D. Witter, Inc., 787 F2d 784.)

Dated: 2/24/14

D:50J.S.C.