Plaintiff Dennis D. Curtin and his wife, plaintiff Karen E. Hogan-Curtin, are the owners of certain real property located at 22 Spitfire Drive in the Town of Peru, Clinton County. In 2008, plaintiffs retained architect Marc Camens to design a home for them on this property. Plaintiffs subsequently retained Blair Brothers Contracting, Inc. (hereinafter Blair Brothers) to build the home, with the parties signing a contract on September 5, 2008 and construction beginning soon thereafter. Blair Brothers is a family-owned business, with defendant James Blair serving as President, his brother, defendant Robert Blair, serving as Vice President and his wife, defendant Cindy Blair, serving as Secretary. All work on the home was done by James and Robert Blair, together with their two employees. All billing was done by Cindy Blair. In August 2009, plaintiffs allegedly saw James Blair attempting to steal usable construction materials from the job site. While Blair Brothers denied this accusation, the parties' relationship subsequently deteriorated. This notwithstanding, the contract was completed and the home finished in October 2009. Plaintiffs then conducted a review of all bills and invoices provided to them by Blair Brothers and allegedly discovered that defendants "were engaging in a consistent pattern of fraud and deceit." Specifically, according to plaintiffs, they were improperly charged for tools that defendants kept for their own personal use, as well as for fuel and automobile insurance for defendants' trucks and for property, liability and compensation insurance. Plaintiffs further contend that defendants routinely over-ordered construction materials and then took all surplus materials from the job site for their own personal use. Finally, plaintiffs contend that defendants charged as so-called "extras" items that were in fact covered under the contract, as well as [*2]artificially inflated the time spent on these "extras."Plaintiffs commenced this action in July 2012, alleging six causes of action: (1) breach of contract; (2) fraudulent misrepresentation; (3) violation of General Business Law § 349; (4) violation of General Business Law § 772; (5) unjust enrichment; and (6) conversion. Issue was thereafter joined, with defendants asserting a counterclaim for $35,000.00, the amount which allegedly remains due and owing under the contract. Discovery has now been completed and the note of issue filed. Presently before the Court is (1) defendants' motion for summary judgment, returnable March 11, 2014; (2) defendants' motion for sanctions, returnable August 4, 2014; and (3) plaintiffs' cross motion for summary judgment, returnable August 4, 2014. The motions and cross motion will be addressed in seriatim.

On a motion for summary judgment, the movant must establish, by admissible proof, its entitlement to judgment as a matter of law (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has met this initial burden, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of fact (Zuckerman v City of New York, 49 NY2d 557, 560 [1980]).

Initially, defendants contend that the second cause of action alleging fraudulent misrepresentation must be dismissed as duplicative of the first cause of action alleging breach of contract. " [A] simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated'" (Torok v Moore's Flatwork & Founds., LLC, 106 AD3d 1421, 1422 [2013], quoting Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]). "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" (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d at 389; see Torok v Moore's Flatwork & Founds., LLC, 106 AD3d at 1422). In other words, the tort claim cannot be "predicated upon precisely the same purported wrongful conduct as is the claim for breach of contract" (OP Solutions, Inc. v Crowell & Moring, LLP, 72 AD3d 622, 622 [2010]; see Torok v Moore's Flatwork & Founds., LLC, 106 AD3d at 1422).

Here, defendants have demonstrated that all of the alleged wrongful conduct springs from the contractual relationship between the parties and, as such, there exists no independent duty (see Torok v Moore's Flatwork & Founds., LLC, 106 AD3d at 1422; see also Rich v Orlando, 108 AD3d 1039, 1041 [2013]; Gallup v Summerset Homes, LLC, 82 AD3d 1658, 1660 [2011]). The Court therefore finds that they have established their entitlement to dismissal of the second cause of action as a matter of law.[*3]The Court further finds that plaintiffs have failed to raise a triable issue of fact in opposition thereto. While plaintiffs contend that the wrongful conduct underlying the fraudulent misrepresentation claim is separate and distinct from that underlying the breach of contract claim, the Court is unpersuaded. The contract states, in pertinent part:

The contract further provides that plaintiffs "shall be responsible for paying for all materials used to construct the [r]esidence, whether provided by Blair Brothers, [plaintiffs'] subcontractors, or [plaintiffs]." It enumerates all work to be performed by the Blair Brothers and includes a price for the labor associated therewith. Finally, the contract provides that plaintiffs may request modifications to the work — i.e., "extras" — which modifications may result in increased labor charges.

In view of the foregoing provisions, the parties' contract undisputedly encompasses plaintiffs' claims relative to property, liability and compensation insurance, as well as labor, construction materials and any modifications or "extras" performed on the project. While it does not expressly encompass the alleged charges for tools, fuel and automobile insurance, these charges nonetheless fall within the purview of the contract. Indeed, plaintiffs have recognized this, alleging in their breach of contract cause of action that "[d]efendants wrongfully and/or fraudulently charged [them] for several items that were not provided for in the [c]onstruction [c]ontract (i.e., tools and equipment, gasoline[ and] insurance . . . )." The second cause of action for fraudulent misrepresentation is then premised upon this very same conduct, alleging that defendants "knowingly submitted invoices with demonstrably false overcharges." Under these circumstances, the Court simply cannot find that the conduct alleged in the fraudulent misrepresentation cause of action is sufficiently discrete from that underlying the breach of contract claim to state a separate cause of action (see Torok v Moore's Flatwork & Founds., LLC, 106 AD3d at 1422; see also OP Solutions, Inc. v Crowell & Moring, LLP, 72 AD3d 622, 622 [2010]; compare Kosowsky v Willard Mtn., Inc., 90 AD3d 1127, 1129 [2011]). Defendants' motion is therefore granted to the extent that plaintiffs' second cause of action is dismissed.

To the extent that this case clearly pertains to a private, single-shot contractual transaction, the Court finds that defendants have established their entitlement to dismissal of the third cause of action as a matter of law. The Court further finds that plaintiffs have failed to raise a triable issue of fact in opposition thereto. Plaintiffs contend that defendants have a pattern of overcharging their customers and, consequently, General Business Law § 349 is applicable. With that said, however, plaintiffs have supported this contention with nothing more than pure speculation (see Bottieri v Tandy, Inc., 117 AD3d 1264, 1265 [2014]). The record reflects a transaction unique to the parties and to the contract they signed, which contract — notably — was drafted by Curtin. The Court therefore finds that the case " does not fall within the ambit of the statute'" (Green Harbour Homeowners' Assn. v G.H. Dev. & Constr., 307 AD2d at 469, quoting Thompson v Parkchester Apts. Co., 271 AD2d 311, 312 [2000]) and dismisses the third cause of action.

With respect to the fifth cause of action, defendants contend that it must be dismissed because recovery on a theory of unjust enrichment is precluded where the parties have executed a valid and enforceable written contract that governs the dispute (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009]; Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d at 388). Indeed, " [t]he theory of unjust enrichment lies as a quasi-contract claim'" (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d at 142, quoting Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 572 [2005]). "It is an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties concerned" (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d at 142; see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d at 388; Parsa v State of New York, 64 NY2d 143, 148 [1984]). To that end, "[i]t is impermissible . . . to seek damages in an action sounding in quasi contract where the suing party has fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties" (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d at 388).

Here, there undisputedly exists a valid and enforceable written contract encompassing the dispute between the parties. The Court therefore finds that defendants have established their entitlement to dismissal of the fifth cause of action as a matter of law. The Court further finds that plaintiffs have failed to raise a triable issue of fact in opposition thereto. Again, all of the allegedly improper charges fall within the purview of the contract and, as such, may be recovered under plaintiffs' breach of contract cause of action. No quasi-contract claim is necessary. Defendants' motion is therefore granted to the extent that plaintiffs' fifth cause of action is dismissed.

Turning now to the sixth cause of action, defendants contend that it must be dismissed as duplicative of the first cause of action because "a claim of conversion cannot be predicated on a mere breach of contract" (MBL Life Assur. Corp. v 555 Realty Co., 240 AD2d 375, 376 [1997]; accord East End Labs., Inc. v Sawaya, 79 AD3d 1095, 1096 [2010]; Hamlet at Willow Cr. Dev. Co., LLC v Northeast Land Dev. Corp., 64 AD3d 85, 112 [2009]). Inasmuch as all of the alleged overcharges underlying plaintiffs' conversion cause of action fall within the purview of the contract, the Court finds that defendants have succeeded in establishing their entitlement to dismissal of the sixth cause of action as a matter of law. The Court further finds that plaintiffs have failed to raise a triable issue of fact in opposition thereto and dismisses the sixth cause of action as well.

Finally, moving to that aspect of the motion seeking to dismiss the complaint in its entirety as against the individual defendants, defendants contend that plaintiffs cannot pierce the corporate veil and hold the individual defendants personally liable for breach of contract. "Broadly speaking, the courts will disregard the corporate form, or, to use accepted terminology, pierce the corporate veil, whenever necessary to prevent fraud or to achieve equity" (Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 140 [1993] [internal quotation marks and citations omitted]). This concept of piercing the corporate veil "is a limitation on the accepted principles that a corporation exists independently of its owners, as a separate legal entity, that the owners are normally not liable for the debts of the corporation, and that it is perfectly legal to incorporate for the express purpose of limiting the liability of the corporate owners" (Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d at 140-141). With that said, "[t]o pierce the corporate veil and hold a corporation owner . . . individually liable, plaintiffs must show that he [or she] exercised complete domination of the corporation concerning the transaction at issue and that this domination was used to commit a fraud or wrong against plaintiffs, causing injury" (ARB Upstate Communications LLC v R.J. Reuter, L.L.C., 93 AD3d 929, 931 [2012]; see Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d at 141).

Here, defendants have submitted the affidavit of James Blair to explain the several alleged overcharges to plaintiff. He states as follows:"Prior to August 6, 2009, I had monthly meetings with Dennis Curtin to go over our invoices. Our invoices broke down various categories of expenses such as materials, labor, gas, insurance, dumpster fees, and extras. The gas and insurance expenses were overhead expenses for [Blair Brothers]. These were included in the cost estimate I prepared for this project and the inclusion of overhead expenses was communicated to Dennis Curtin prior to execution of the contract. . . . . Additionally, extra work that was performed from September 2008 through July 2009 was included in the monthly invoices and discussed with Dennis Curtin during each of our monthly meetings. All questions that Dennis had . . . were discussed and answered to his satisfaction . . . ."

The Court finds that defendants have failed to establish as a matter of law that plaintiffs cannot pierce the corporate veil and hold the individual defendants personally liable. Indeed, while James Blair indicates that fuel and automobile insurance expenses were included in the [*5]cost estimate initially provided to plaintiffs, these expenses were not included in the contract that was signed. Further, the fact that plaintiffs signed off on the charges each month is virtually meaningless in view of the allegations that they did so based upon defendants' misrepresentations. Insofar as defendants contend that neither Robert Blair nor Cindy Blair were aware of the alleged overcharges, this contention is belied by the record. For example, both Robert and Cindy Blair testified that they were aware of the fuel charges. Under these circumstances, it cannot be said as a matter of law that the individual defendants did not exercise complete domination of the corporation concerning the transaction at issue and that this domination was used to commit a fraud or wrong against plaintiffs, causing injury. The Court therefore declines to dismiss the first cause of action as against the individual defendants.

Based upon the foregoing, defendants' motion for summary judgment is granted to the extent that plaintiffs' second, third, fifth and sixth causes of action are dismissed and the motion is otherwise denied.

Turning now to defendants' motion for sanctions, Hogan-Curtin testified during her deposition that she communicated with the architect "[m]ostly [by] email" and "[o]ccasionally [by] telephone." Further, because Curtin changed employment approximately mid-way through construction and began making frequent trips to Europe, defendants "belie[ve] that he would have had communications with the architect via email throughout 2009." Based upon the foregoing, defendants requested "[c]opies of all email communication between [plaintiffs] and any representatives of the Camens Architectural Group." While defendants expected to receive numerous emails in response to their request, they instead received — as they characterize it — only "a handful of email[s]." According to defendants, plaintiffs destroyed or otherwise failed to preserve the relevant emails and, as a result, are liable for spoliation.^[FN2] Insofar as defendants believe that these emails would have reflected the many extras done on the project and thus serve to support their counterclaim for $35,000.00, they request that the jury be given an adverse inference charge and, further, that plaintiffs be precluded from offering any evidence in opposition to the counterclaim.

" [C]ourts have discretion to impose sanctions under CPLR 3126 when a party intentionally, contumaciously or in bad faith fails to comply with a discovery order or destroys evidence prior to an adversary's inspection'" (Hartford Fire Ins. Co. v. Regenerative Bldg. Constr., 271 AD2d 862, 863 [2000], quoting Puccia v Farley, 261 AD2d 83, 85 [1999]; see Markel Ins. Co. v Bottini Fuel, 116 AD3d 1143, 1144 [2014]; Cummings v Central Tractor Farm & Country, 281 AD2d 792, 793 [2001], lv dismissed 96 NY2d 896 [2001]). "Sanctions may also be appropriate in certain circumstances where a litigant negligently disposes of crucial items of evidence before the opposing party has had an opportunity to view them" (Hartford Fire Ins. Co. [*6]v. Regenerative Bldg. Constr., 271 AD2d at 863 [citation omitted]; see Markel Ins. Co. v Bottini Fuel, 116 AD3d at 1144; Cummings v Central Tractor Farm & Country, 281 AD2d at 793; Kirkland v New York City Hous. Auth., 236 AD2d 170, 173 [1997]). In determining whether to impose sanctions, " courts will look to the extent that the spoliation of evidence may prejudice a party'" (Hartford Fire Ins. Co. v. Regenerative Bldg. Constr., 271 AD2d at 863, quoting Puccia v Farley, 261 AD2d at 85).

Here, both plaintiffs have submitted affidavits in opposition to the motion. Curtin states that "[m]ost of his communication with Camens was by telephone," as he is "not very computer savvy and did not use email extensively." Curtin-Hogan states that, while she did communicate with Camens via email, she does not recall "emailing [him] with respect to questions as to whether any work that was being done by [d]efendants was either part of the contract or beyond the scope of the contract, or any extras' that were being claimed." Plaintiffs admit that the computer used by Curtin-Hogan to send e-mails became infected with a virus in the summer of 2010 and, further, that they discarded it without making any effort to save the contents thereof. Again, however, plaintiffs contend that there were no emails on the computer pertaining to "extras" done on the project. According to plaintiffs, defendants have been given all of the emails — both to and from Camens — that are in their possession.

Under these circumstances, the Court declines to impose any sanction for the alleged spoliation of evidence. While plaintiffs were perhaps negligent in discarding their computer in 2010 without making any effort to save its contents, the fact remains that defendants have failed to prove that the subject emails ever actually existed (see State of New York v 158th St. & Riverside Dr. Hous. Co., Inc., 100 AD3d 1293, 1295 [2012], lv denied 20 NY3d 858 [2013]; see also Jean—Pierre v. Touro Coll., 40 AD3d 819, 820 [2007]). Moreover, to the extent that the counterclaim seeks payment for "extras" performed by defendants, defendants presumably have their own records to support the counterclaim and need not rely on emails exchanged between plaintiffs and their architect. Therefore, to the extent that any spoliation did take place, the Court finds that defendants have not been prejudiced thereby (see State of New York v 158th St. & Riverside Dr. Hous. Co., Inc., 100 AD3d at 1296; see Merrill v Elmira Hgts. Cent. School Dist., 77 AD3d at 1165, 1166-1167 [2010]).

Based upon the foregoing, the Court denies defendants' motion for sanctions in its entirety.

In opposition, defendants contend that the cross motion is untimely and, further, that all charges underlying the counterclaim are fully set forth in the final bill issued to plaintiffs.

Initially, the Court agrees with defendants that the cross motion for summary judgment is untimely. The note of issue was filed by plaintiffs on October 25, 2013 and, pursuant to the Preliminary Conference Stipulation and Order issued by the Court on November 28, 2012, all dispositive motions were to be filed "within ninety [90] days of the date [of] filing of the trial [*7][n]ote of [i]ssue." The time for filing a motion for summary judgment therefore expired on January 23, 2014, more than six months prior to the filing of the cross motion.^[FN3] Even if the Court were to apply the more liberal time frame set forth in CPLR 3212 (a), the cross motion still would be untimely. It must also be noted that plaintiffs did not request an extension in which to file the cross motion (see CPLR 3212 [a]). Under these circumstances, plaintiffs' cross motion for summary judgment dismissing defendants' counterclaim is denied in its entirety (see Brill v City of New York, 2 NY3d 648, 652-653 [2004]; McDowell & Walker, Inc. v Micha, 113 AD3d 979, 980-981 [2014]).

Briefly, were the Court to address the merits of the cross motion, it still would be denied. To the extent that defendants' records — while cursory — nonetheless set forth the basis for the "extra's" [sic] charged, there exist triable issues of fact precluding an award of summary judgment.

Therefore, having considered the Affirmation of John M. Crotty, Esq. with exhibits

ORDERED that defendants' motion for summary judgment is granted to the extent that plaintiffs' second, third, fifth and sixth causes of action are dismissed and the motion is otherwise denied; and it is further

ORDERED that defendants' motion for sanctions is denied in its entirety; and it is further

ORDERED that plaintiffs' cross motion for summary judgment dismissing defendants' counterclaim is denied in its entirety.

The original of this Decision and Order is returned to counsel for defendants for filing and service with notice of entry. The Notice of Motion dated January 7, 2014, Notice of Motion dated July 22, 2014 and Notice of Cross Motion dated July 31, 2014 have been filed by the Court together with the above-referenced submissions.

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ROBERT J. MULLER, J.S.C.