United States District Court, S.D. New York
OPINION & ORDER
S. ROMAN, UNITED STATES DISTRICT JUDGE.
Debra Rothberg commenced the instant action against Defendant
Phil's Main Roofing, LLC ("Phil's" or
"Defendant") alleging claims for breach of contract
and, in the alternative, unjust enrichment. (See
generally Complaint, ECF No. 1.) Defendant filed a
third-party complaint against DHI Construction Services, Inc.
("DHI"), Manuel H. Perez, d/b/a ENP Home
Improvement, LLC,  Mitchell Wilk Architecture, P.C., and
Douglas Wilk. (Def s. Third-Party Compl. ("Def.
Compl."), ECF No. 16.) Presently before the Court is
Defendant Phil's motion to dismiss Plaintiff's
Complaint, as well as a motion to dismiss Defendant
Phil's Third-Party Complaint, filed by Defendants
Mitchell Wilk Architecture, P.C. and Douglas Wilk
(collectively, "MWA"). The Court has jurisdiction
over this action pursuant to 28 U.S.C. § 1332. For the
reasons stated below, Defendant Phil's motion is GRANTED
in part and DENIED in part, and MWA's motion is GRANTED.
otherwise indicated, the facts are drawn from Plaintiffs
Complaint ("PI. Compl."), (ECF No. 1), and
Defendant's Third-Party Complaint ("Def.
Compl."), (ECF No. 16.). Plaintiff contracted with DHI
in connection with the construction of her new home.
(Pi's. Mem. in Opp'n. to Def s. Mot. to Dismiss
("PI. Opp."), ECF No. 82 at 1.) DHI, in turn,
entered into a subcontract agreement (the
"Subcontract") with Defendant wherein Defendant was
to "supply labor, materials, and equipment necessary to
properly perform" the roofing work on Plaintiffs home.
(PI. Compl. ¶ 9.) The Subcontract was made expressly
subject to a hold harmless agreement (the "Hold
Harmless") executed by Defendant. (Id. ¶
10.) Defendant acknowledged receipt of payment by DHI in the
amount of $88, 000, by Partial Waiver of Lein dated December
1, 2013. (Id. ¶ 11.) The Hold Harmless provides
for the recovery of attorneys' fees, costs, expenses, and
disbursements incurred in the "defense of the underlying
claim, " in the enforcement of the Subcontract,
"and the prosecution of any claim for indemnification by
Plaintiff." (Id. ¶ 13.) Pursuant to a
Confidential Settlement Assignment and Assumption Agreement
between Plaintiff and DHI (the "DHI Assignment
Agreement"), dated August 12, 2014, DHI assigned all of
its rights and obligations under the Subcontract, including
the Hold Harmless, to Plaintiff. (Id. ¶ 12.)
completed work on Plaintiffs roof on or about November or
December 2011. (Ttf.¶ 15.) In April 2012, Plaintiff
began to observe issues with the new roof, including
"cupping" of the shingles, staining on the trim
boards, and misalignment of roof panels. (Id. ¶
16.) In May 2012, a Professional Engineer conducted an
initial Inspection of the roof and identified certain defects
therein. (Id. ¶ 17.) In June and July 2012,
Plaintiff communicated the inspection results to Defendant.
(Id. ¶ 18.) In August and September 2012,
Plaintiff permitted Defendant to conduct inspections on the
"Roof Systems." (Id. ¶ 19.) After
conducting its own inspection. Defendant admitted to
Plaintiff that the "wood cedar roof and standing seam
metal roof was defectively installed, " and
"further conceded" that there may have been other
issues with the roofing work as well. (Id. ¶
20.) Defendant subsequently represented to Plaintiff that it
would correct the errors and omissions in the wood cedar roof
and replace the standing seam mental roof at its own expense,
but failed to do so. (Id. ¶¶ 21, 22.)
Plaintiff was also deprived of any available product
warranties of the roofing system as a result of
Defendant's failure to register the products.
(Id. ¶ 23.)
2013, Plaintiff retained an independent roof-consulting firm,
which identified various defects with the roof, and revealed
Defendant's failure "to comply with applicable
codes, regulations, manufacturer requirements and standards
applicable to the residential construction industry."
(Id. ¶¶ 24, 25.) The firm recommended
removal and replacement of the "defective roofing
systems." (Id. ¶ 26.) Later, in December
2013, Plaintiff engaged a qualified roofing contractor to
remove and replace the defective roofing system, and incurred
various costs, in excess of $75, 000, in connection with the
removal, and related repairs arising from the same.
(Id. ¶ 27-29.)
to Defendant's Third-Party claim, in November 2010,
Plaintiff engaged MWA to perform "professional
architectural and construction administration services"
in connection with the construction of Plaintiffs property.
(Def. Compl. ¶ 14.) MWA served as "Architect of
Record" on this project. (Id. ¶
the Federal Rules of Civil Procedure, "[a]fter the
pleadings are closed - but early enough not to delay trial -
a party may move for judgment on the pleadings."
Fed.R.Civ.P. 12(c). When deciding motions under Rule 12(c),
courts "employ[ ] the same... standard applicable to
dismissals pursuant to [Rule] 12(b)(6)." L-7
Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d
Cir. 2011) (quoting Johnson v. Rowley, 569 F.3d 40,
43 (2d Cir. 2009)) (internal quotation marks omitted).
Rule 12(b)(6), on a motion to dismiss for "failure to
state a claim upon which relief can be granted, "
dismissal is proper unless the complaint "contain[s]
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Ad. Corp. v. Twombly, 550 U.S. 544,
570 (2007)); accord Hayden v. Paterson, 594 F.3d
150, 160 (2d Cir. 2010). To survive a motion to dismiss, a
complaint must supply "factual allegations sufficient
'to raise a right to relief above the speculative
level.'" ATSI Commc'ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting
Twombly, 550 U.S. at 555). "While legal conclusions
can provide the framework of a complaint, they must be
supported by factual allegations." Id. at 679.
The Court must take all material factual allegations as true
and draw reasonable inferences in the non-moving party's
favor, but the Court is '"not bound to accept as
true a legal conclusion couched as a factual allegation,
'" or to credit "mere conclusory
statements" or "[t]hreadbare recitals of the
elements of a cause of action." Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 555). In
determining whether a complaint states a plausible claim for
relief, a district court must consider the context and
"draw on its judicial experience and common sense."
Id. at 662. A claim is facially plausible when the
factual content pleaded allows a court "to draw a
reasonable inference that the defendant is liable for the
misconduct alleged." Id. at 678.
I. Plaintiffs Breach of Contract Claim
assignment is a contractual transfer of a right, interest, or
claim from one person to another." Sompo Japan Ins.
Co. of Am. v. Norfolk S. Ry Co., 966 F.Supp.2d 270,
279-80 (S.D.N.Y. 2013), aff'd, 762 F.3d 165 (2d
Cir. 2014). In this sense, the assignee assumes all rights of
the assignor, "no greater and no less." In re
New Haven Projects Ltd. Liab. Co., 225 F.3d 283, 290 n.4
(2d Cir. 2000). In this role, the assignee is permitted to
"stand in the shoes" of assignor, in order to
enforce the contract it has assumed the rights to. Sompo
Japan Ins. Co. of Am., 966 F.Supp. at 279-80. In her
capacity as assignee, Plaintiff brings a breach of contract
claim against Defendant.
New York law, to state a claim for breach of contract a party
must allege: (1) the existence of a contract; (2) performance
of the contract by one party; (3) breach of the contract by
the other party; and (4) damages as a result of the breach.
First Inv 'rs Corp. v. Liberty Mut. Ins. Co.,152 F.3d 162, 168 (2d Cir. 1998). Defendant challenges
Plaintiffs ability to plausibly allege the fourth factor.
Specifically, Defendant argues that because DHI suffered no
damages as a result of any alleged breach by Defendant,
Plaintiff, standing in the shoes of DHI, cannot assert a
breach of contract claim for the costs she incurred in
connection with the defects associated with the roofing work
performed (Plaintiffs "roofing claims").
(See Def. Mem. in Support of Mot. to Dismiss
("Def. Mem."), at 13, ECF No. 80.) In support of
this argument, Defendant asserts that DHI has sustained no
damages attributable to Defendant because the Confidential
Settlement Assignment and Assumption Agreement specifically
excluded payment for any and all roofing
claims; thus, Defendant argues, none of the
settlement monies paid by DHI to Plaintiff were intended to
compensate Plaintiff for Defendant's alleged breach of
contract, nor did DHI pay any additional monies or suffer any
damages pursuant to the alleged breach. (See Id.
13-14.) Defendant further contends that the damages and costs
incurred by Plaintiff were incurred by her individually, and
not by DHL (Id. at 14-15.) In sum, Defendant
argues that because the damages asserted were not sustained
or paid for by DHI, they are personal damages incurred by