Legal Document: Signature Metal And Marble Maintenance, Llc D/B/A Signature Metal And Marble v. Apaiser Pty Ltd

On May 02, 2023 a DECISION + ORDER ON MOTION (Motion #1) - DATED: 1/29/24 was filed involving a dispute between Signature Metal And Marble Maintenance, Llc D B A Signature Metal And Marble, and Apaiser Pty Ltd, for Commercial - Contract in the District Court of Bronx County.

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NEW YORK SUPREME COURT - COUNTY OF BRONX
PART 32

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF THE BRONX
a=. --X
SIGNATURE METAL AND MARBLE
MAINTENANCE, LLC d/b/a SIGNATURE METAL
AND MARBLE,
Index No. 806834/2023E
Plaintiff,
Hon. FIDEL E. GOMEZ
- against - Justice

APAISER PTY LTD,

Defendant.
a=. --X
The following papers numbered | to 4, Read on this Motion noticed of 11/14/23, and duly
submitted as no. | on the Motion Calendar of 11/14/23.
PAPERS NUMBERED
Notice of Motion - Order to Show Cause — 1
Exhibits and Affidavits Annexed
Answering Affidavit and Exhibits
Replying Affidavit and Exhibits
Notice of Cross-Motion - Affidavits and Exhibits
Pleadings - Exhibit
Stipulation(s) - Referee’s Report - Minutes
Filed Papers- Judgment of Foreclosure and Sale
Memorandum of Law 2,4

Defendant’s motion and plaintiffs cross-motion are decided in accordance with the Decision and
Order annexed hereto.

Dated:
1/29/24 Hon._
FIDEL E. GOMEZ, JSC

1.CHECK ONE O CASE DISPOSED X NON-FINAL DISPOSITION
2. MOTION/CROSS-MOTION IS. O GRANTED (MOTION) O DENIED (MOTION)
X GRANTED IN PART O OTHER
3. CHECK IF APPROPRIATE. O SETTLE ORDER O FIDUCIARYAPPOINTMENT
O SUBMIT ORDER (REFEREE APPOINTMENT
O DO NOT POST CO NEXT APPEARANCE DATE:

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF THE BRONX
--. X
SIGNATURE METAL AND MARBLE
MAINTENANCE, LLC d/b/a SIGNATURE
METAL AND MARBLE,

Plaintiff,
-against- DECISION AND ORDER

Index No. 806834/2023E
APAISER PTY LTD,

Defendants.
ween ene eee eee een en enenen ene,

In the instant action, defendant Apaiser Pty Ltd (Apaiser) moves for an Order dismissing

the complaint, pursuant to CPLR §306-b, CPLR § 3211(a)(1), CPLR § 3211(a)(7) and CPLR §
3211(a)(8).
Plaintiff Signature Metal and Marble Maintenance, LLC d/b/a Signature Metal and

Marble (Signature) opposes Apaiser’s motion and cross-moves' for an Order, pursuant to CPLR

§§ 2001, 306-b and 308(5), deeming service already effectuated as proper, nunc pro tunc; or, in

‘Signature submitted an affirmation of counsel “in opposition to motion to dismiss and in
support of crossmotion.” However, Signature failed to file or submit a notice of motion in
violation of CPLR § 2215. While New York courts have denied reliefto a party that failed to
serve a formal notice of motion, effectively making a cross application for relief contained only
in an affirmation included among opposing papers (Hergerton v Hergerton, 235 AD2d 395, 396
[2d Dept 1997]; Thomas vDrifters, 219 AD2d 639, 640 [2d Dept 1995]), courts retain discretion
to entertain requests for affirmative relief that do not meet the requirements of CPLR § 2215.
Factors to consider in granting such requests include the interrelatedness of the relief requested
by the nonmoving party and the relief requested in the main motion, the prominence in the
opposition papers of the affirmative request for relief and the movant’s opportunity to address
that request, and the interest of judicial economy. Here, the substance of Signature’s cross-
motion directly relates to one of Apaiser’s grounds for seeking dismissal of the complaint
(CPLR § 306-b). Further, the affirmative request in the crossmotion is prominently set forth in
counsel’s affirmation and Apaiser had an opportunity to address that request, which it did, in its
reply memorandum of law. This militates in favor of entertaining Signature’s request for
affirmative relief. Therefore, the Court will entertain Signature’s cross-motion.

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the alternative, granting Signature thirty (30) additional days to serve the summons and

complaint via email to Apaiser’s attorneys; or, in the alternative, granting Signature a 120-day

extension of time to serve the complaint via personal service in a manner directed by the Court.

Apaiser opposes Signature’s cross-motion.
For the reasons set forth hereinafter, Apaiser’s motion is granted, in part, and Signature’s

cross-motion is also granted, in part.

BACKGROUND

The complaint in the instant action alleges causes of action for breach of contract,

quantum meruit, unjust enrichment, account stated and breach of implied covenant of good faith

and fair dealing based upon Apaiser’s failure to pay Signature for goods and services Signature

provided under a contract between Signature and Apaiser. Specifically, the complaint alleges as
follows: Signature contracted with Apaiser for Signature to provide, inter alia, architectural

panels and vanity repairs to the property located at 701 Seventh Avenue, New York, NY 10036

(the Premises). The agreed upon price and value of materials under the original contract,

including change orders and extra charges, is $424,310.01. Signature demanded payment of said

amount but Apaiser failed to pay, leaving an unpaid balance of $424,310.01. Apaiser accepted,

received and benefitted from the goods and services provided by Signature. Signature rendered

statements of account, billing statements and invoices to Apaiser and Apaiser accepted same

without dispute.
Apaiser moves for an Order dismissing the complaint pursuant to CPLR § 306-b and

CPLR §§ 3211(a)(1), (a)(7) and (a)(8). In support of dismissal pursuant to CPLR § 306-b and

CPLR § 3211(a)(8), Apaiser contends that it is an Australian company with no facilities or

current operations in New York, therefore, Signature is required to effect service of the

summons and complaint on Apaiser in accordance with the provisions of the Hague Convention

on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the

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Hague Service Convention).? Apaiser avers that, contrary to the Hague Service Convention’s

requirement that Signature serve Apaiser in compliance with Australian law, by employing the

service ofthe State of Victoria’s Sheriff's Office, Signature attempted to serve Apaiser through a

private party with no apparent affiliation with any Australian authority authorized to perform
service. Apaiser also avers that Signature attempted to serve Apaiser after the precribed 120-day

time period under CPLR § 306-b.

In support of dismissal pursuant to CPLR §§ 3211(a)(1) and (a)(7), Apaiser contends that

Signature has failed to plead the terms of the alleged contractual relationship with any specificity

and the claims are expressly contradicted by the documentary evidence. Apaiser avers that,

although Signature alleges that it contracted with Apaiser and rendered its services pursuant to

“an original contract, including change orders and extra charges,” Signature failed to provide the

Court with any documents substantiating those allegations. Apaiser notes that Signature did not
attached the alleged contract or any of the change orders to its complaint. Apaiser further

contends that Signature has not pleaded “even the most basic information regarding the contracts

or the relevant terms.” If anything, Signature avers, the only available record is a single

purchase order issued by Apaiser to Signature for a total value of $106,490, which Apaiser

disputes is owing. Apaiser further contends that, to the extent that any contractual relationship

existed, that relationship was between Signature and CNY Construction 701 LLC (CNY).

In support of its contentions, Apaiser submitted, inter alia, a purchase order, an invoice

and several service requests.* The Apaiser purchase order, dated August 15, 2018, indicates that

*Convention on Service Aboard of Judicial and Extrajudicial Documents in Civil and
Commercial Matters, Nov. 15, 1965 (Hague Service Convention), [1969] 20 U.S.T. 361, T.LA.S.
No. 6638.

Notably, Signature avers that Apaiser “has submitted literally no admissible evidence to
support its Attorney’s, Ms. Tor’s, assertion that Signature’s claims lack merit because no
contract existed between Signature and Apaiser. Even if, purely in theory, Signature had not
placed admissible proof of the contract’s existence on the Record, her assertion cannot be
considered as disproof of merits because it is inadmissible hearsay in every respect.” An
affirmation of an attorney who has no personal knowledge of the facts is without evidentiary
value (Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). However, an affidavit or
affirmation of an attorney, even if s/he has no knowledge of the facts, may serve as the vehicle

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Signature was to provide “1000 straight time hours” for “Rectification works” on the “Edition

Times Sq.” job in exchange for $106,490 US dollars. Pages 2 through 4 of the purchase order,

all titled “PURCHASE ORDER TERMS,” sets forth various terms for the parties agreement. Of

note, section 2.1 provides that “[t]his Contract is formed when a Purchase Order has been issued
to the Contractor in acceptance of a written quotation, tender, or offer to supply from the

Contractor.” Section 2.2 provides that the Contract consists of the purchase order, the purchase

order terms and conditions, and any other attachments to the purchase order.

The Signature invoice, in the amount of $38,762.36 and dated July 13, 2018, is addressed

to Steven Colao at CNY Construction 701 LLC and describes the work as “Provide Apaiser

Vanity repairs for the 701 Seventh Ave Project.”

The ten Signature service requests, dated between July 16, 2018 and July 30, 2018, state

the location “701-7th Ave New York” in handwriting. Seven of the ten service requests state
“CNY CONSTRUCTION” in handwriting at the top of the request. The remaining three service

requests are blank in that area. All of the service requests bear a “Customer” signature of a CNY

employee.

In opposition to Apaiser’s motion and in support of its cross-motion, Signature contends

that Apaiser’s motion should be denied and Signature’s cross-motion granted because: (1)

Signature has met the standard for service to be accepted nunc pro tunc; (2) if nunc pro tunc

service is denied, an extension of time to serve and service upon Apaiser again will permit

technically lawful jurisdiction over Apaiser without any prejudice to Apaiser’s rights; and (3)
dismissal pursuant to CPLR § 306-b should not be granted because Apaiser is coming to the

Court with unclean hands by purposefully failing to register as a foreign corporation with the

for the submission of the contract between the parties and related documents (id.; Advanced
Alternative Media, Inc. v Hindlin, 220 AD3d 474, 474-475 [1st Dept 2023]; De-Spec, Inc. v
Sadick, 147 AD3d 425, 425 [1st Dept 2017]). The August 15, 2018 purchase order is also
admissible for the independent reason that both parties submit and rely on it (Carey v Toy
Industry Association TM, Inc., 216 AD3d 404, 405 [1st Dept 2023]; Rosa v 47 East 34" Street
(NY), L.P., 208 AD3d 1075, 1079 [1st Dept 2022]).

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New York Secretary of State to avoid service of process upon it in New York in violation of

Business Corporation Law (BCL) §1312(a).*

In support of its contentions, Signature submitted, inter alia, the affidavit of Robin

Eagleton, its Vice President and General Manager wherein she states as follows: She has read
and is fully familiar with Signature’s complaint. The allegations in the complaint, to her

personal knowledge, are truthful and accurate, with the sole exception of statements asserted or

implied to be upon information and belief. She is Signature’s Custodian of Records. Her

knowledge is based on her review of Signature’s business records, which she attached to her

affidavit.’ Eagleton attached to her affidavit copies ofan Apaiser purchase order, dated August

15, 2018, invoices and related service requests. The Signature purchase order, addressed to

Apaiser, states an amount due of $106,490 for 1000 “straight time hours” to perform

“Rectification works” at the subject location. The purchase order includes three additional
pages, each entitled “Purchase Order Terms.” Of note, section 2.1 states that “[t]he Contract is

formed when a Purchase Order has been issued to the Contractor in acceptance of a written

quotation, tender, or offer to supply from the Contractor.” Section 2.2 states that the contract

consists of the purchase order, the purchase order terms and conditions, and any other

attachments to the purchase order.

The Signature invoices are addressed to Apaiser. An invoice dated July 13, 2018 states

an amount due of $42,202.52. Five invoices, each dated August 22, 2018, state amounts due of

‘This contention lacks merit. BCL §1312 provides that “[t]he failure of a foreign
corporation to obtain authority to do business in this state shall not impair the validity of the
contract . . . and shall not prevent the foreign corporation from defending in any action or
proceeding in this state.” As such, Apaiser has the right to defend itself in this action. Nor is
there any evidence that Apaiser failed to register as a foreign corporation to avoid service of
process upon it in New York.

‘While Eagleton failed to lay a proper business records foundation for the admission of
the documents into evidence pursuant to CPLR § 4518, in its reply memorandum of law, Apaiser
raises no objection to the admissibility of those documents and, indeed, Apaiser relies on many
of those documents in its reply memorandum (Carey v Toy Industry Association TM, Inc., 216
AD3d 404, 405 [1st Dept 2023]; Rosa v 47 East 34" Street (NY), L.P., 208 AD3d 1075, 1079
[Ist Dept 2022]).
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$3,701.75, $143,905.53, $49,048.19, $35,166.63 and $22,210.50, respectively. An invoice dated

August 31, 2018 states an amount due of $128,974.89. One of the invoices describes the work

as “Provide Apaiser Vanity repairs for the 701 Seventh Ave Project.” All remaining invoices

describe the work as “Touch up architectural panels and bases as directed by client.”
According to Eagleton, Signature’s business records demonstrate that a written

agreement existed prior to and through December 31, 2018 between Signature and Apaiser;

Signature fully performed upon the terms of the written agreement; and Apaiser breached the

agreement by failing to pay Signature’s lawful bills for its goods, services and labor.

Finally, Eagleton states that she spoke with Apaiser’s Australian and New York City

personnel during the time period that Signature performed under its agreement with Apaiser,

who stated to her that Apaiser’s New York City office at 85 Delancey Street in Manhattan was

and continues to be its Manhattan affiliate.
In its reply memorandum, Apaiser reiterates its initial arguments and, in addition,

contends that: (1) Signature’s allegations concerning BCL § 1312(a) lack merit and, in any

event, they are not alleged in the complaint; (2) the majority of the work orders submitted with

the Signature invoices were signed by employees of CNY, not Apaiser; and (3) Signature did not

oppose Apaiser’s motion to dismiss the account stated and implied covenant of good faith and

fair dealing claims.

Standard of Review
In deciding a motion to dismiss pursuant to CPLR § 3211, a court must “accept the facts

alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable

inference, and determine only whether the facts as alleged fit within any cognizable legal theory”

(Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The pleading is to be afforded a liberal

construction (id. at 87). Ambiguous allegations must be resolved in plaintiff's favor (JF Capital

Advisors, LLC v Lightstone Group, LLC, 23 NY3d 759, 764 [2015]). “The motion must be

denied if from the pleadings’ four corners factual allegations are discerned which taken together

manifest any cause of action cognizable at law” (51/1 West 232" Owners Corp. v Jennifer Realty

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Co., 98 NY2d 144, 152 [2002]). “Where . . . the allegations consist of bare legal conclusions, as

well as factual claims either inherently incredible or flatly contradicted by documentary

evidence, they are not entitled to such consideration” (Ul/man v Norma Kamali, Inc., 207 AD2d

691, 692 [1st Dept 1994]).
It is well settled that a defense based on documentary evidence is not dispositive “unless

the documents submitted resolve all of the factual issues as a matter of law” (Standard

Chartered Bank v D. Chabbott, Inc, 178 AD2d 112, 112 [1st Dept 1991]). Dismissal of the

complaint pursuant to CPLR § 3211(a)(1), therefore, is only warranted where “the documentary

evidence submitted conclusively establishes a defense to the asserted claims as a matter of law”

(Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).
When a party moves to dismiss a complaint pursuant to CPLR § 3211(a)(7), the standard

is whether the pleading states a cause of action, not whether the proponent of the pleading has a
cause of action ( Guggenheimer v Ginzburg, 43 NY2d 268 [1977]). “Whether a plaintiff
can

ultimately establish its allegations is not part of the calculus” (EBCI, Inc. v Goldman Sachs &

Co., 5 NY3d 11, 19 [2005]). Ona motion made pursuant to CPLR § 3211(a)(7), the burden

never shifts to the nonmoving party to rebut a defense asserted by the moving party (Sokol v

Leader, 74 AD3d 1180, 1181 [2nd Dept 2010]). While “CPLR § 3211 allows a plaintiffto

submit affidavits, [] it does not oblige him to do so on penalty of dismissal” (Rovello v Orofino

Realty Co., 40 NY2d 633, 635 [1976]). Affidavits may be received for a limited purpose only,

serving normally to remedy defects in the complaint, and such affidavits are not to be examined
for the purpose of determining whether there is evidentiary support for the pleading (id. at 636).

Thus, a plaintiff “will not be penalized because he has not made an evidentiary showing in

support of his complaint” (Rovello at 635).

However, a court may consider evidentiary material submitted by a defendant, and if it

does so, the criterion becomes “whether the proponent of the pleading has a cause of action, not

whether he has stated one” (Guggenheimer at 275). Affidavits submitted by a defendant “will

almost never warrant dismissal under CPLR § 3211 unless they establish conclusively that [the

plaintiff] has no cause of action” (Lawrence v Graubard Miller, 11 NY3d 588, 595 [1976]

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quoting Rovello at 636). Indeed, a motion to dismiss pursuant to CPLR § 3211(a)(7) must be

denied “unless it has been shown that a material fact as claimed by the pleader to be one is not a

fact at all and unless it can be said that no significant dispute exists regarding it” ( Guggenheimer

at 275).

DISCUSSION

1. Apaiser’s motion to dismiss

Apaiser moves for the dismissal of the complaint, pursuant to CPLR § 3211(a)(1),

asserting that the documentary evidence refutes Signature’s claim that a contract between the

parties exist and/or that Apaiser owes Signature money. As discussed above, dismissal pursuant

to CPLR § 3211(a)(1) is only warranted when “the documentary evidence submitted

conclusively establishes a defense to the asserted claims as a matter of law” (Goshen v Mutual
Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Here, the documentary evidence does not

conclusively establish that Apaiser has a defense to Signature’s claims. Indeed, Apaiser appears

to acknowledge the existence of a contract between Apaiser and Signature in both its

memorandum of law in support of its motion and its reply memorandum of law. Notably, in its

memorandum of law in support of its motion, Apaiser states that “the record is devoid of any

evidence that any such ‘contract’ exists. If anything, the only available record is a single

purchase order issued by Apaiser to Signature for a total value of $106,490, which Apaiser

disputes is owing. The record is devoid of any evidence that would merit attributing the
remaining $317,000 to Apaiser.” In its reply memorandum of law, Apaiser states that “Signature

continues to fail to present the Court with any documents to substantiate the $424,310 it seeks.

If anything, the only available record is a single purchase order issued by Apaiser to Signature

for a total value of $106,490, which Apaiser disputes is owing.” Significantly, Apaiser failed to

submit any documentary evidence evincing that Apaiser does not owe Signature $106,490.

Therefore, Apaiser’s motion to dismiss the complaint pursuant to CPLR § 3211(a)(1) is denied.

Apaiser also moves for the dismissal of the complaint, pursuant to CPLR § 3211(a)(7), on

the ground that the complaint fails to state a cause of action. For the reasons set forth below,

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Apaiser’s motion is granted to the extent that Signature’s second, third, fourth and fifth causes of

action are dismissed. Signature’s first cause of action — breach of contract — remains viable.

Breach of Contract - 1" Cause of Action

To plead a cause of action for breach of contract, a plaintiff must allege that a contract
exists, plaintiff performed in accordance with the contract, defendant breached its contractual

obligations and defendant’s breach resulted in damages (34-06 73, LLC v Seneca Insurance

Company, 39 NY3d 44, 52 [2022]). To recover damages for a breach of a written contract, the

plaintiff's allegations must identify the provisions of the contract that were breached (Biotronik

A.G. v Conor Medsystems Ireland, Ltd, 22 NY3d 799, 805-806 [2014]).

The complaint alleges that Apaiser engaged the services of Signature by requesting that it

provide goods and services for the project; Signature performed its duties and completed

delivery of all goods and services for the project; Apaiser promised to pay for the goods and
services but has refused to pay for same; and that as a result Apaiser’s failure to pay Signature as

promised, Signature has suffered damages in the amount of $424,310.01. Based on the

foregoing allegations, and Eagleton’s affidavit and attached exhibits, the Court finds that the

complaint sufficiently states a cause of action for breach of contract.

Quantum Meruit/Unjust Enrichment - 2" and 3rd Causes of Action

The elements of a cause of action sounding in quantum meruit are: (1) the performance

of services in good faith; (2) the acceptance of services by the person to whom they are rendered;

(3) the expectation of compensation therefor; and (4) the reasonable value of the services
rendered (Johnson v Robertson, 131 AD3d 670, 672 [2nd Dept 2015]).

Unjust enrichment is a quasi-contract theory of recovery, and “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 132, 142 [2009]). The

plaintiff must show that the other party was enriched, at plaintiff's expense, and that “it is

against equity and good conscience to permit [the other party] to retain what is sought to be

recovered” (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011]). Although privity

is not required for an unjust enrichment claim, a claim will not be supported unless there is a

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connection or relationship between the parties that could have caused reliance or inducement on

the plaintiff's part (id.; Sperry v Crompton Corp., 8 NY3d 204, 215 [2007]).

Significantly, a party may not recover in quantum meruit or unjust enrichment where the

parties have entered into a contract which governs the subject matter (Clark-Fitzpatrick, Inc. v
Long Island R. Co., 70 NY2d 382,388 [1987]; Gateway I Group, Inc. v Park Ave. Physicians,

P.C. 62 AD3d 141, 149 [2d Dept 2009]). Here, Signature alleges that a valid and enforceable

contract exists between it and Apaiser for the services and materials, that Signature demanded

payment under the contract for same, and that Apaiser failed to pay the amounts due under the

contract. The existence of a contract between Signature and Apaiser is fatal to Signature’s

quantum meruit and unjust enrichment claims, and, therefore, Signature’s second and third

causes of action are dismissed.

Account Stated - 4" Cause of Action
An account stated represents an agreement between the parties reflecting an amount due

on a prior transaction (Styles Brook Homeowners’ Association v Blasi, 165 AD3d 1004, 1005 [2d

Dept 2018] [An account stated is an account balanced and rendered, with an assent to the

balance express or implied; so that the demand is essentially the same as if a promissory note

had been given for the balance” [internal quotation marks and citations omitted]; Cameron

Engineering & Associates, LLP v JMS Architect & Planner, P.C., 75 AD3d 488, 488 [2d Dept

2010]; Episcopal Health Services, Inc. v Pom Recoveries, Inc., 138 AD3d 917, 919 [2d Dept

2016] [“‘As account stated is an agreement, express or implied, between the parties to an account
based upon prior transactions between them with respect to the correctness of account items and

a specific balance due on them which is independent of the original obligation.”] [internal

quotations marks and citation omitted]). An essential element of an account stated cause of

action is that the parties came to an agreement with respect to the amount of the balance due

(Interman Indus. Prods. v R.S.M. Electron Power, 37 NY2d 151, 153-154 [1975]; Newburger-

Morris Co. v Talcott, 219 NY 505, 512 [1916] ). A plaintiff establishes entitlement to judgment

on a cause of action for account stated by “tendering sufficient evidence that it generated account

statements for the defendant in the regular course of business, that it mailed those statements to

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the defendant on a monthly basis, and that the defendant accepted and retained these statements

for a reasonable period of time without objection, and made partial payments thereon” (Citibank

v Keskin, 121 AD3d 635, 636 [2d Dept 2014]; American Express Centurion Bank v Gabay, 94

AD3d 795, 795 [2d Dept 2012]). “While the mere silence and failure to object to an account
stated cannot be construed as an agreement as to the correctness of the account, the factual

situation attending the particular transaction may be such that, in the absence of an objection

made within a reasonable time, an implied account stated may be found” (Interman Indus.

Prods. At 154). Here, the complaint alleges that Signature contracted with Apaiser to perform

work at the Premises; the agreed upon price and value of materials under the original contract,

including change orders and extra charges, was $424,310.01; Signature rendered statements of

account, billing statements, and invoices which Apaiser accepted without dispute; and Apaiser

has failed or refused to make any payments to Signature. This is sufficient to state a cause of
action for an account stated. However, this cause of action should be dismissed as duplicative of

Signature’s breach of contract claim (Martin H. Bauman Assoc. v H&M Intl. Transp.,171 AD2d

479, 485 [1st Dept 1991]; Hagman v Swenson, 149 AD3d 1, 7 [Ist Dept 2017]).
Breach of Implied Covenant of Good Faith and Fair Dealing - 5 Cause of Action

The implied covenant of good faith and fair dealing “embraces a pledge that neither party

shall do anything that will have the effect of destroying or injuring the right of the other party to

receive the fruits of the contract,” and is breached when a party acts in a manner that deprives

the other party of the benefits of the contract (5// W. 232" Owners Corp. v Jennifer Realty Co.,
98 NY2dd 144, 153 [2002]). Generally, a breach of the covenant of good faith and fair dealing

is a breach of the contract itself (Parlux Fragrances, LLC v S. Carter Enterprises, LLC, 204

AD3d 72, 91 [1st Dept 2022]). Therefore, a separate cause of action for breach of the covenant

cannot be maintained where, as here, it is premised on the same conduct that underlies the

breach of contract cause of action and is intrinsically tied to the damages resulting from a breach

of the contract (id. at 92). The complaint alleges that there was an implied covenant of good

faith and fair dealing in connection with Signature furnishing material for the improvement of

the Premises; Apaiser breached the implied covenant of good faith and fair dealing; and

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Signature has sustained damages in the amount of $424,310.01. Notably, the factual allegations

which undergird Signature’s claim for breach of implied covenant of good faith and fair dealing

are indistinguishable from those of its breach of contract claim. Indeed, the same damages are

sought for both causes of action. As such, Signature’s fifth cause of action is duplicative of its
breach of contract claim and is dismissed.
HOR
OR RK KK

Apaiser also moves for dismissal of the complaint, pursuant to CPLR § 3211(a)(8), on

the ground that the court lacks jurisdiction over Apaiser due to defective service of the summons

and complaint on Apaiser. CPLR § 3211(a)(8) provides for the dismissal of a complaint on the

ground that “the court has not jurisdiction ofthe person of the defendant.” It is axiomatic that a

court lacks personal jurisdiction over a defendant when a plaintiff fails to properly effectuate

service of process (Nationstar Mortgage, LLC vEsdelle, 186 AD3d 1384, 1386 [2d Dept 2020];
Krisilas v Mount Sinai Hosp., 63 AD3d 887, 889 [2d Dept 2009]). Such a defect is not cured by

the defendant’s subsequent receipt of actual notice of the action, since notice received by means

other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of

the court (Feinstein v Bergner, 48 NY2d 234, 241 [1979]; Krisilas at 889).

CPLR § 311(a)(1) provides that personal service upon a corporation shall be made “upon

any domestic or foreign corporation, to an officer, director, managing or general agent, or

cashier or assistant cashier or to any other agent authorized by appointment or by law to receive

service.” CPLR § 311(b) provides that if service upon a domestic or foreign corporation within
the 120 days allowed by section 306-b is impracticable under CPLR § 311(a)(1), or any other

law, service upon the corporation may be made in such manner, and proof of service may take

such form, as the court, upon motion without notice, directs.

Significantly, Australia is a party to the Hague Service Convention, which allows the

transmission of judicial and extrajudicial documents for service to countries which are a party to

the Convention. Service consistent with the Hague Service Convention is mandatory for all

States which are signatories to the Convention. Article 1 of the Convention provides that each

Contracting State shall designate a Central Authority which will undertake to receive requests

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for service coming from other Contracting States, and shall proceed in conformity with the

provisions of Articles 3 to 6. Articles 3 to 6 govern the mechanism of service, generally by

forwarding the documents to be served to the Central Authority of a State which itself serves the

documents or arranges for the documents to be served by an appropriate agency in the State.
Article 5 governs service by the Central Authority of foreign legal documents within Australia,

and states:

The Central Authority of the State addressed shall itself serve the
document or shall arrange to have it served by an appropriate
agency, either —

a) by a method prescribed by its internal law for the service of
documents in domestic actions upon persons who are within its
territory, or

b) by a particular method requested by the applicant, unless such a
method is incompatible with the law of the State addressed.

Subject to subparagraph (b) of the first paragraph above, the
Central Authority may always be served by delivery to an
addressee who accepts it voluntarily.

Service of documents on a person in the Commonwealth of Victoria is made by means of
personal service by the Sheriff with the request of the Supreme Court (Service of foreign civil

legal documents in Australia (incoming requests), Guidelines [Nov. 14, 2018], Australian

Government Attorney-General’s Department, https://www.ag.gov.au). Service of a document on

a corporation is effected by personally serving the document on the corporation in any manner in

which service of such a document may, by law, be served on the corporation (id.). Specific

service requirements for the Commonwealth of Victoria and prescribed forms are provided in

Order 80 of the Supreme Court (General Civil Procedure) Rules 2015 (Part 4 - Service under the

Hague Convention, S.R. No. 103, 2015). Section 80.13 states that Part 4 applies to service “in
this jurisdiction of a foreign judicial document in relation to which a due form of request for

service has been forwarded to the Court . . .by the Attorney-General’s Department of the

Commonwealth . . . or by a forwarding authority.” Section 80.15(1) states that “on request for

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service in this jurisdiction, the Court must arrange for the service of the relevant documents in

accordance with the request.” Pursuant to section 80.15(3), service may be effected by “a

method of service prescribed by the law in force in this jurisdiction . . . for the service of a

document of a kind corresponding to the document to be served; or [ ] if there is no such
corresponding kind of document, for the service of initiating process in proceedings in the

Court.” Ifthe applicant has requested a particular method of service and that method is

compatible with the law in force in the Commonwealth of Victoria, service by that method is

permitted (Sec. 80.15[b]). If the applicant has not requested a particular method of service and

the person requested to be served accepts the document voluntarily, service may be made by

delivery of the document to the person requested to be served (Sec. 80.15[c]). If service of a

document has been effected pursuant to a request for service in the Commonwealth of Victoria,

the person by whom service has been effected must lodge an affidavit with the Court (Sec.
80.16[1]). While Signature submitted the Victoria Supreme Court Rules and asserts that they

permit delivery of a summons by a private process server, Signature does not cite to any specific

provision of said Rules in support of its assertion. Significantly, the Court has found no

provision in said Rules which expressly permits service by private process servers. Nor do those

Rules state that service by a Sheriff's office is required to effect service on a person or a

corporation, as Apaiser contends.

Article 10 of the Hague Service Convention provides for alternate forms of service in the

absence of any objection by the State of destination. Article 10 states:
Provided the State of destination does not object, the present
Convention shall not interfere with —

(a) the freedom to send judicial documents by postal channels,
directly to persons abroad,

(b) the freedom of judicial officers, officials or other competent
persons of the State of origin to effect service of judicial
documents directly through the judicial officers, officials or other
competent persons of the State of destination,

© the freedom of any person interested in a judicial proceeding to
effect service of judicial documents directly through the judicial

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January 29, 2024

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May 02, 2023

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Document for Signature Metal And Marble Maintenance, Llc D/B/A Signature Metal And Marble v. Apaiser Pty Ltd

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