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Sanders v. WB Kirby Hill LLC

United States District Court, E.D. New York

November 14, 2017


          BARSHA Y SANDERS, PLLC BY: Craig B. Sande's, Esq. STEVEN SIEGEL, P.C. BY: Nathan V. Bishop, Esq, Attorneys for Defendants Bernard M. Janowitz and Sammy I. Janowitz



         This case arises out of transactions between the parties whereby plaintiff Douglas H. Sanders ("plaintiff or "Sanders") purchased a piece Of property and defendants built a home on that property pursuant to contract. Plaintiff alleges that the home as built did not comply with the requirements set forth by the non-party Village of Muttontown (the "Village"), and thus defendants WB Kirby Hill LLC ("WB Kirby") and TRJ Services LLC d/b/a Coast Oak Group ("Coast Oak") breached the contract. He further alleges that the individual defendants, Bernard M. Janowitz ("Bernard J.") and Sammy I. Janowitz ("Sammy J.") (collectively, the "Janowitz defendants"), made various misrepresentations constituting fraud. Currently before the Court is the Janowitz defendants' motion to dismiss. For the reasons set forth below, the motion is granted.


         A. Factual History

         The factual allegations regarding the moving defendants are summarized for the purpose of this motion. This case involves plaintiffs purchase of a lot located at 6 Kingwood Court, Muttontown, New York, in an area referred to as the Stone Hill development, and the circumstances leading to the building of his home on that lot.

         1. The parties

         On February 23, 2010, Sanders and WB Kirby[1] entered into a purchase agreement for the land for $1.4 million. Am. Compl. ¶18 & Ex. 1 ("Purchase Agreement"). The Purchase Agreement was signed by plaintiff and WB Kirby "By Bernard Janowitz." That same day, WB Kirby entered into a Construction Agreement with Sanders to build a home on the land. Am. Compl. ¶19 & Ex. 2 (the "Construction Agreement"). That agreement was also signed by plaintiff and WB Kirby "By Bernard Janowitz, Builder." Plaintiff makes no allegations regarding Bernard J.'s signature on these documents, but rather claims that there is "no contract" between Bernard J. and himself. Id. ¶158. He also alleges that Bernard J. was neither an owner nor principal of WB Kirby, and only held himself out as a principal of that entity. On a single occasion, plaintiff refers to Bernard J. as "the developer." Am. Compl. ¶72.

         Sammy J.'s role in these events is unclear. Plaintiff alleges Sammy J. was not an owner or employee of WB Kirby and that Sanders had no contractual relationship with him. Plaintiff claims that Sammy J. "falsely represented and held his father out as a principal of WB Kirby." Am. Compl. ¶29. Presumably, Sammy's "father" is Bernard. In addition, Sammy J., in some undesignated capacity, "personally picked the pavers and supervised the design of the retaining wall." Id. ¶85.

         2. Allegations leading to the execution of contracts

         Plaintiff generally alleges that in January 2010, prior to his purchase of the property, Bernard J., knowing that plaintiff wanted to build an oversize, 6000 square foot home with room for a pool as of right, Am. Compl. ¶ 35, provided drawings and oral assurances on the suitability of the land for both the larger home and the pool, id. ¶36, and "fraudulently misrepresented and/or failed to advise Sanders that the larger home would require varriances [sic] and potentially would violate Village rules and ordinances despite knowing same." Id. ¶37. Plaintiff further alleges that Bernard J. made additional fraudulent representations including, inter alia, that he would handle filings with the Village, that there would be no issues with plaintiffs specifications, that no variances would be required, and that the specific lot purchased by plaintiff could accommodate all his requirements without variances. There is no indication regarding when, where, or how these representations were made.

         Sammy J. also allegedly made representations to plaintiff such as, inter alia, that no variances would be required, and that there would be no issue with the Village regarding either the size of the home or the addition of a pool as of right. Plaintiff alleges that both Janowitz defendants knew at the time of plaintiff s purchase that the Village would not approve the larger home and would not approve a pool as of right. Additionally, the Janowitz defendants fraudulently conveyed "inaccurate information from the architect to Sanders" to convince the latter to enter into the purchase and construction agreements. Am. Compl. ¶48.

         2. Post-contract allegations

         The Construction Agreement on February 23, 2010 provided, inter alia, that WB Kirby would furnish all labor, materials, and equipment necessary to construct the home, and that WB Kirby "shall obtain and pay for all Certificates of Occupancy, Compliance and/or Completion for the Improvements as may be required by the applicable governmental authorities..." Am. Compl. ΒΆ65. Sanders paid WB Kirby $1.6 million as required by the Construction Agreement, plus an additional $330, 000 in ...

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