Supreme Court, Kings County

Decided on April 6, 2026

Index No. 520154/2020

Francois A. Rivera, J.

[*1]

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on August 25, 2025, under motion sequence number twelve, by Charles G. Michel Engineering, P.C. (hereinafter defendant or movant) for an order pursuant to CPLR 3211 (a) (1) and CPLR 3211 (a) (5) and CPLR (a) (7) dismissing the first amended complaint of plaintiffs Jonathan Dorman and Merrill Stubbs Dorman (hereinafter plaintiffs or owners) against movant on the ground that it is barred by the three year statute of limitations under CPLR 214 (6). The motion is opposed.

-Notice of motion

-Affidavit in support

-Affirmation in support

Exhibits A

-Memorandum of law in support^FN1

-Memorandum of law in opposition

Exhibits 1-2

-Affirmation in opposition

-Affirmation in reply

Exhibit A

BACKGROUND

On October 19, 2020, Jonathan Dorman and Merrill Stubbs Dorman (hereinafter the plaintiffs) commenced the instant action by filing a summons and complaint with the Kings County Clerk's office (KCCO).

On December 21, 2020, defendants Ben Herzog Architect, P.C., and Ben Herzog (hereinafter the Herzog defendants) interposed and filed a verified answer with the KCCO.

On January 11, 2021, the Herzog defendants interposed and filed an amended verified answer with cross claims, counterclaims, and third-party claims with the KCCO.

On January 18, 2021, the plaintiffs interposed and filed a reply to the counterclaims alleged in the amended verified answer of the Herzog defendants with the KCCO.

On January 25, 2021, codefendants LuVa of New York, LLC, Waldek Dec and Andrew Pasek (hereinafter collectively the LuVa defendants) interposed and filed a verified answer with counterclaims and cross claims against the Herzog defendants.

By short form order dated May 29, 2025, the Court granted motion sequence number six to file an amended complaint. The amended complaint was deemed served and the appearing [*2]defendants were given 30 days from notice of entry of the order to respond. Pursuant to the same order, the Court granted a stay of all proceedings beginning June 16, 2025 until July 16, 2025.

On July 18, 2025, plaintiffs filed an amended complaint, denominated as "First Amended Complaint" (hereinafter amended complaint), under NYSCEF doc. no. 352.

The amended complaint contains nine-hundred-twenty-eight allegations of fact in support of twenty-four denominated causes of action. The first cause of action is asserted against LuVa of NY, LLC for breach of contract. The second cause of action is asserted against LuVa of NY, LLC, Andrew Pasek, and Waldek Dec for breach of fiduciary duties. The third cause of action is asserted against LuVa of NY, LLC for breach of implied covenant of good faith and fair dealing. The fourth cause of action is asserted against LuVa of NY, LLC, Andrew Pasek, and Waldek Dec for negligence. The fifth cause of action is asserted against LuVa of NY, LLC, Andrew Pasek, and Waldek Dec for conversion. The sixth cause of action is asserted is asserted against LuVa of NY, LLC, Andrew Pasek, and Waldek Dec for fraudulent inducement. The seventh cause of action is asserted against LuVa of NY, LLC, Andrew Pasek, and Waldek Dec for fraud. The eighth cause of action is asserted against LuVa of NY, LLC, Andrew Pasek, and Waldek Dec for unjust enrichment. The ninth cause of action is asserted against Ben Herzog Architects, P.C. for breach of contract. The tenth cause of action is asserted against Ben Herzog Architects, P.C. and Ben Herzog for breach of the implied covenant of good faith and fair dealing. The eleventh cause of action is asserted against Ben Herzog Architects, P.C. and Ben Herzog for breach of fiduciary duties. The twelfth cause of action is asserted against Ben Herzog Architects, P.C., Ben Herzog, and Jeremy Vealey for fraud. The thirteenth cause of action is asserted against Ben Herzog Architects, P.C. and Ben Herzog for negligence. The fourteenth cause of action is asserted against LuVa of NY, LLC, Andrew Pasek, Waldek Dec, Jenn-Kraft, and Scott Jennings for fraud. The fifteenth cause of action is asserted against LuVa of NY, LLC, Andrew Pasek, Waldek Dec, Ben Herzog Architects, P.C., Ben Herzog, Jeremy Vealey, Scott Jennings, and Jenn-Kraft, LLC for conspiracy to commit fraud. The sixteenth cause of action is asserted against Scott Jennings and Jenn-Kraft, LLC for negligence. The seventeenth cause of action is asserted against Lucasz Organisciak and Transpol Contracting for negligence. The eighteenth cause of action is asserted against Orbit Plumbing and Heating, Inc., Louis Abramo, John Knobloch, JK Mechanical Inc., and Krysztof Drelich for negligence. The nineteenth cause of action is asserted against Piotr Radzik, Dario Knesich, Glendale Electrical Contracting, Inc., and Voltage Electric for negligence. The twentieth cause of action is asserted against Seckar & Sons and Charles G. Michel Engineering, P.C. for negligence. The twenty-first cause of action is asserted against Jenn-Kraft, LLC, Orbit Plumbing and Heating, JK Mechanical, Voltage Electric, Glendale Electrical Contracting, Seckar & Sons, and Transpol Contracting for unjust enrichment. The twenty-second cause of action is asserted against LuVa of NY, LLC, LuVa Enterprises, LLC, Anva, LLC, Andrew Pasek, and Waldek Dec for actual fraudulent transfers under New York Debtor and Creditor Law § 273. The twenty-third cause of action is asserted against LuVa of NY, LLC, LuVa Enterprises, LLC, Anva, LLC, Andrew Pasek, and Waldek Dec for constructive fraudulent transfer under Debtor and Creditor Law § 274. The twenty-fourth cause of action is asserted against LuVa of NY, LLC, LuVa Enterprises, LLC, Anva, LLC, Andrew Pasek, and Waldek Dec for what is denominated as "Attorney's Fees In Action To Avoid A Transfer Or Obligation Constructive Fraudulent Transfer" under Debtor and Creditor Law § 276-a. Plaintiffs seek a judgment against defendants, jointly and severally for a) [*3]compensatory damages in an amount not less than $500,000, b) avoiding any transfers to LuVa Enterprises or Anva, c) attaching and garnishing assets transferred to LuVa Enterprises or Anva, d) punitive damages, e) interest, f) attorney's fees, g) statutory attorney's fees incurred as a result of the voidable transfers to LuVa Enterprises or Anva, h) costs of suit, and i) any other relief the Court deems reasonable and just under the circumstances.

The Amended Complaint seeks damages against multiple parties arising out of a renovation project at the plaintiffs' home located at a certain address in Brooklyn, New York (hereinafter premises) and alleges the following salient facts.

Defendant Ben Herzog Architect (hereinafter BHA) was the lead architect, project manager and contract administrator for the complete design and renovation of the premises (Amended Complaint ¶ 2). BHA entered into a contract with the plaintiffs on or about February 22, 2017 (Amended Complaint ¶ 46). Plaintiffs hired defendant LuVa of NY, LLC as the general contractor for the renovation work at the premises; LuVa of NY, LLC commenced work at the premises on or about February 12, 2018, with an initial project end date of February 12, 2019 (Amended Complaint ¶ 82). On or about January 15, 2020, BHA issued a punch list of items it claimed were needed for the home to reach "final completion" status (Amended Complaint ¶ 3). In early October 2019, plaintiffs took possession of the premises (Amended Complaint ¶ 583). The conditions under which the plaintiffs and their children took possession of the premises included not having heat in the home, not having use of a stove or oven to cook food, multiple plumbing issues, multiple leaks, improperly functioning electrical system, living at a construction site, among other things (Amended Complaint ¶ 585 a-i).

Based upon BHA's recommendation, plaintiffs engaged CGM as the mechanical engineer in or about April, 2017 (Amended Complaint ¶ 531). CGM's responsibilities included (i) designing the heating, ventilation, and air conditioning (hereinafter HVAC) system, (ii) supervising its installation in accordance with the design and contract documents, and (iii) serving as the mechanical systems special inspector for purposes of the required New York City Department of Buildings (hereinafter DOB) inspections (Amended Complaint ¶ 876). Separately, Seckar and Sons was subcontracted by LuVa of NY, LLC to perform installation of the HVAC system that CGM and BHA jointly designed. (Amended Complaint ¶¶ 532-533). CGM and BHA were required to ensure that the HVAC system installed by Seckar and Sons conformed to the contract documents (Amended Complaint ¶ 534).

After the completion of the HVAC renovation work, an inspection of the premises was conducted on February 4, 2020 with representatives of the mechanical contractor, defendant Seckar & Sons, LLC and CGM present to review what work remained open, incomplete or materially deficient (Amended Complaint ¶ 535). A list of the HVAC work needed to be completed was issued to BHA (Amended Complaint ¶ 536). The HVAC was certified as 100% completed more than 6 months before CGM compiled its list, with plaintiffs having paid the entire amount for the HVAC ($98,500.00) minus a small retainage on the overall project (Amended Complaint ¶ 537). Seckar & Sons, LLC refused to perform the work on the list (Amended Complaint ¶ 539) and plaintiffs eventually hired a new HVAC subcontractor to perform remedial and additional HVAC work (Amended Complaint ¶¶ 538-541). Plaintiffs also hired a new mechanical engineer in place of CGM in their attempt to obtain a sign-off on the project (Amended Complaint ¶ 542).

In agreeing to design the HVAC system and serve as the HVAC supervisor and special inspector, CGM had a duty to the plaintiffs to make reasonable efforts to protect them in the [*4]exercise of its duties and not hide material issues from them (Amended Complaint ¶ 878). CGM's negligence, breach of its duty, and violations of the standards of care include, but are not limited to: a) approving certain work that did not meet the contract documents in that it was substandard (the failure to properly install the den HVAC) or incomplete (the failure to install the proper venting in the guest bathroom), b) refusing to visit the site or communicate with Seckar & Sons or plaintiffs about what it would take to complete the HVAC work so that the TR1s and TR8s could be signed off in violation of their agreement with the owners, c) after initially indicating that he could initially approve the remaining HVAC work by picture, telling plaintiffs that it would probably be cheaper to engage a new mechanical engineer than continue with CGM, who made clear that he was going to enforce a newer heightened standard years after his final inspection, and d) refusing to sign off on TR1 or TR8 inspections despite acknowledging that CGM was not aware of any code violations (Amended Complaint ¶ 879 a-d). CGM's negligence forced plaintiffs to engage a new professional to supervise the repairs and sign-off on the necessary TR1 and TR8s (Amended Complaint ¶ 880). The plaintiffs directly paid all invoices to CGM, totaling thousands of dollars over the course of the project (Amended Complaint ¶ 877). As a result of Seckar & Sons LLC and CGM's actions, plaintiffs have been damaged in an amount in excess of $20,000 (Amended Complaint ¶ 544).

The amended complaint asserts one cause of action against CGM for negligence (Amended Complaint, twentieth cause of action p. 137-138). On August 25, 2025, defendant Charles G. Michel Engineering (hereinafter the moving defendant or CGM) filed the instant pre-answer motion to dismiss the negligence cause of action pursuant to CPLR 3211 (a) (1), CPLR (a) (5), and CPLR (a) (7).

MOTION PAPERS

In support of the motion, on August 25, 2025 defendant Charles G. Michel Engineering, P.C. (hereinafter CGM) filed a notice of motion, an affirmation in support by Charles G. Michel (hereinafter Michel), an attorney affirmation in support by Martin A. Schwartzberg (hereinafter Schwartzberg), exhibit A, and a memorandum of law in support. Exhibit A is a copy of the amended complaint.

On October 1, 2025, defendant filed exhibits 1-4. Exhibit 1 is denominated as "Exh 1 to Charles G. Michel Affirmation in Support — Dorman/CGM Agrmt [NYSCEF Doc. #372] and consists of five pages. Exhibit 2 is denominated as "Exh 2 to Charles G. Michel Affirmation in Support - Invoice - NYSCEF Doc. #372" and consists of one page. Exhibit 3 is denominated as "Exh 3 to Charles G. Michel Affirmation in Support - Checks - NYSCEF Doc. #372" and consists of three pages. Exhibit 4 is denominated as "Exh 4 to Charles G. Michel Affirmation in Support - 4 Reports - NYSCEF Doc. #372" and consists of thirteen pages.

On October 23, 2025, in opposition to the motion, the plaintiffs submitted a memorandum of law in opposition, an affirmation in opposition by plaintiff Jonathan Dorman (hereinafter Dorman), and exhibits 1-2. Exhibit 1 is a copy of the amended complaint. Exhibit 2 is denominated as "Signed Proposal for CGM" and consists of five pages.

On December 19, 2025, CGM submitted its reply affirmation by Schwartzberg and exhibit A. Exhibit A is denominated as "Contract" and consists of six pages, the first of which is a cover page labeled exhibit A.

[*5]LAW AND APPLICATION

The moving defendant, CGM, seeks pre-answer dismissal of the amended complaint for the negligence cause of action asserted against it pursuant to CPLR 3211 (a) (1), CPLR (a) (5), and CPLR (a) (7).

CPLR 3211 (a) provides, in relevant part:

(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:

1. a defense is founded upon documentary evidence; or . . .

5. the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds; or . . .

7. the pleading fails to state a cause of action

CPLR 3211 (a) (7)

It is noted that the plaintiff has not pursued a claim for breach of contract against the movant but rather limited itself to a claim for negligence. The Court therefore addresses the motion accordingly.

In the interest of judicial economy, the CPLR 3211 (a) (7) ground will be analyzed first. In the event that the amended complaint fails to state a cause of action then the Court need not determine the CPLR 3211 (a) (1) or CPLR 3211 (a) (5) basis for dismissal.

"'On a motion pursuant to CPLR 3211(a)(7), the court should accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory"' (450 Gin Lane SH, LLC v Gentry Constr. Co., Inc., — NYS3d —, 2026 WL 157386, 2026 NY Slip Op 00228 [2d Dept 2026], quoting Goldberg v KOSL Bldg. Group, LLC, 236 AD3d 995, 996 [2d Dept 2025]).

Where "evidentiary material is submitted and considered on a motion pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Graphic Arts Mut. Ins. Co. v Pine Bush Cent. Sch. Dist., 159 AD3d 769, 771 [2d Dept 2018]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). However, bare legal conclusions are not entitled to the benefit of the presumption of truth and are not accorded every favorable inference (see Doria v Masucci, 230 AD2d 764, 765 [2d Dept 1996]).

"The elements of negligence are (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom" (Campolongo v DR & RD, Inc. 241 AD3d 1417, 1419 [2d Dept 2025], citing Klein v Catholic Health Sys. of Long Is., Inc., 231 AD3d 797, 799 [2d Dept 2024]). "[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" (Kovalenko v Bhatti General [*6]Contracting & Development, LLC, 241 AD3d 1540, 1544 [2d Dept 2025], quoting Kollatz v KOS Bldg. Group, LLC, 188 AD3d 1175, 1178 [2d Dept 2020]; Board of Managers of Caton Court Condominium v Caton Development LP, 41 Misc 3d 1231[A], 2013 NY Slip Op 51951[U], *5 [Sup Ct, Kings County 2013]; see Gallup v Summerset Homes, LLC, 82 AD3d 1658, 1660 [4th Dept 2011]). "[S]imply alleging a duty of due care does not transform a breach of contract [claim] into a tort claim" (Clemens Realty, LLC v New York City Dept. of Educ., 47 AD3d 666, 667 [2d Dept 2008] [internal quotation marks and citation omitted]). However, a "'legal duty independent of contractual obligations may be imposed by law as an incident to the parties' relationship' and . . . several types of defendants—including professionals—can be held liable in tort 'for failure to exercise reasonable care, irrespective of their contractual duties'" (Kovalenko v Bhatti General Contracting & Development, LLC, 241 AD3d 1540, 1544-1545 [2d Dept 2025], quoting Dormitory Authority of the State of NY v Samson Constr. Co., 30 NY3d 704, 711 [2018]). "[T]his independent duty has been imposed based on the nature of the services performed and the defendant's relationship with its customer—specifically, where the defendant 'perform[s] a service affected with a significant public interest [and where the] failure to perform the service carefully and competently can have catastrophic consequences'" (Kovalenko v Bhatti General Contracting & Development, LLC, 241 AD3d 1540, 1545 [2d Dept 2025], quoting Dormitory Authority of the State of NY v Samson Constr. Co., 30 NY3d 704, 711 [2018]).

Here, the only cause of action asserted against CGM in the amended complaint is for negligence. The amended verified complaint among other things alleges that CGM's negligence, breach of its duty, and violations of the standards of care include, were not limited to: a) approving certain work that did not meet the contract documents in that it was substandard or incomplete, b) refusing to visit the site or communicate with Seckar & Sons or plaintiffs about what it would take to complete the HVAC work so that the TR1s and TR8s could be signed off in violation of their agreement with the owners, c) after initially indicating that he could initially approve the remaining HVAC work by picture, telling plaintiffs that it would probably be cheaper to engage a new mechanical engineer than continue with CGM, who made clear that he was going to enforce a newer heightened standard years after his final inspection, and d) refusing to sign off on TR1 or TR8 inspections despite acknowledging that CGM was not aware of any code violations.

Here, "the complaint did not allege facts that would give rise to a duty owed to the plaintiff that was independent of the duty imposed by the parties' contract, and the plaintiff was essentially seeking the contractual benefit of its bargain" (Pratt Paper (NY), Inc. v Atlanta Gear Works, Inc., 246 AD3d 945, 945 [2d Dept 2026]). The allegations of negligence in the complaint are based on CGM's alleged failure to adequately perform under its agreement with the plaintiffs. Therefore, the violation sounds in breach of contract rather than tort (see Gallup v Summerset Homes, LLC, 82 AD3d 1658, 1660 [4th Dept 2011]).

The plaintiff has failed to allege or demonstrate as a matter of law that the defendant owed it a legal duty independent of the contractual duty, and that the defendant breached that independent duty (see Clemens Realty, LLC v New York City Dept. of Educ., 47 AD3d 666, 667 [2d Dept 2008]).

"The court may consider any factual submissions made in opposition to a motion to dismiss a pleading in order to remedy pleading defects" (see Jennings v Metropolitan, 226 AD3d 662, 663 [2d Dept 2024]). In opposition, plaintiff submitted a memorandum of law and an affirmation in support by plaintiff Jonathan Dorman. Neither the memorandum of law nor the [*7]affirmation by Jonathan Dorman remedied the aforementioned deficiencies in the plaintiff's pleadings.

For the reasons set forth above, the Court finds the plaintiff neither plead nor has a cause of action for negligence against CGM.

Because the Court concludes that the amended complaint fails to state a cause of action for negligence, it need not address dismissal under CPLR 3211 (a) (1) or CPLR 3211 (a) (5).

CONCLUSION

The motion under motion sequence number twelve, by defendant Charles G. Michel Engineering, P.C. for an order pursuant to CPLR 3211 (a) (1) and CPLR 3211 (a) (5) and CPLR (a) (7) dismissing the first amended complaint of plaintiffs Jonathan Dorman and Merrill Stubbs Dorman against the movant is granted.

The foregoing constitutes the decision and order of this Court.

ENTER:

J.S.C.