In this action for breach of contract, fraud, aiding and abetting fraud, negligence, negligent misrepresentation, fraudulent concealment, and negligent infliction of emotional distress, defendants Sovereign Associates, Inc. ("Sovereign"), Gregory Healy ("Healy"), and Sachin Inman ("Inman") move pursuant to CPLR 3211(a)(1) and (7) for dismissal of plaintiff Irene Katehis's ("plaintiff") complaint. For the following reasons, defendants' motion is granted.Factual Background

On June 27, 2011, plaintiff executed a lease for 640 Fort Washington Avenue, Apartment 5K (the "Apartment"), in Manhattan (the "Lease"). The Lease was for a one-year term, from July 2011 through the end of June 2012, with a monthly rent of $2,500. Healy and Inman are employees of Sovereign, a real estate brokerage firm, which assisted plaintiff in obtaining the Apartment. At signing, plaintiff provided a $2,500 security deposit along with a total advance rental payment of $30,000. Plaintiff also paid Sovereign a total of $3,600 for its services.

Plaintiff moved into the Apartment on July 25, 2011. Two days later, plaintiff observed a [*2]bat flying in the Apartment. The building's superintendent, in response to plaintiff's complaint of the bat, entered the Apartment and caught the bat in a bag and removed it. The superintendent assured plaintiff that the Apartment was free of bats and that this was not a common occurrence.

Four days later, a bat scratched plaintiff around her head area while she was preparing to retire for the night. Plaintiff, along with her mother and aunt (who were also staying at the Apartment), had to stay at a relative's apartment for the evening. Thereafter, plaintiff and her relatives who had been residing with her, sought immediate and emergency medical treatment to prevent rabies. When meeting with her physician, plaintiff also noticed two marks on her arm, and scratches on her legs, which plaintiff believes were caused by a bat while she was asleep in, or when she departed, the Apartment.

Plaintiff and her relatives received a series of shots for rabies at Lenox Hill Hospital. As a result, plaintiff experienced numerous health side effects. Additionally, plaintiff experienced severe anxiety, and has had trouble sleeping. She also had to suspend her college education. Since the incident, plaintiff and her mother have resided at other locations.

Plaintiff alleges that defendants were aware of, or reasonably should have been aware of, a bat infestation in the Apartment. And, defendants willfully, or with willful blindness, failed to warn plaintiff of the infestation before she entered into the Lease and while she was reviewing Lease documents, despite the fact that plaintiff asked defendants about the habitability and presence of vermin therein, and was assured that there were no pest infestations therein.

In her first cause of action (breach of contract), plaintiff alleges that Sovereign entered into a binding oral agreement to act as broker for plaintiff to obtain a habitable apartment. As to the second through sixth causes of action, plaintiff alleges that she was fraudulently induced to execute the Lease based on false representations regarding the Apartment's habitability and presence of bats. The seventh cause of action (negligent infliction of emotional distress) is based on the above, and on allegations that for a full week, plaintiff cohabitated with the bats and was exposed to diseases such as rabies, and the fear of contracting same.

Arguments

Defendants contend that as to the breach of contract claim, plaintiff's allegation that defendants breached an oral agreement to provide her with a habitable apartment is barred by documentary evidence. The Brokerage Commission Agreement (the "Agreement"), signed by plaintiff, contains a merger clause indicating that the Agreement (and a registration agreement which was not returned incomplete and unsigned) set forth the "entire Agreement between us and supersedes" all other written and verbal agreements. Further, as evidenced in affidavits provided by Healy and Inman, plaintiff thoroughly inspected the Apartment before becoming a tenant and signed an apartment condition rider (the "Rider") stating that plaintiff was taking the Apartment "as is" and "not sanitized."

As to the second cause of action (fraud) and third through sixth causes of action (claims derivative of the fraud claim), plaintiff fails to properly plead damages, as required. In this regard, plaintiff fails to plead damages for the "actual pecuniary loss" sustained as a direct result of the wrong (the "out-of-pocket" rule).

Additionally, Healy avers that in response to plaintiff's inquiries about rodents and pests in the building, he stated that "as we were talking about a New York City building, there were of course rodents and pests, but that the building provided exterminator service." Inman states in [*3]his affidavit that four days before the Lease was executed, plaintiff, in his presence, inspected the Apartment for approximately 45 minutes, including all access points, rooms, closets, paint construction, windows, and cabinets. In response to plaintiff's questions about rodents and pests in the building, Inman explained that the building had a monthly exterminator provided to all tenants free of charge by the building.

Defendants further contend that the negligent infliction of emotional distress claim should be dismissed because the complaint fails to allege conduct that is extreme and outrageous.

Also, plaintiff's action is directed at the wrong parties, and would be more appropriately directed at the building's owner and managing agent. Defendants note that in 2011, plaintiff brought an action against the building's owner and managing agent for the same injuries. In 2013, she brought a second action against Sovereign and Inman; however, she never served them with the summons and complaint.

In opposition, plaintiff argues that the breach of contract claim should stand because defendants violated the Code of Ethics and Standards of Practice of the National Association of Realtors (the "Realtors Code"), which provides that realtors pledge themselves to protect and promote the interests of their client. Clients' interests include finding a "habitable" apartment. Thus, there is an implied warranty of habitability that is inherent in all real estate broker agreements, including the Agreement. This requirement for honesty precludes defendants or their employees from relying upon the merger clause included in the Agreement. Moreover, the Realtors Code contains the duty to avoid exaggeration, misrepresentation or concealment of pertinent facts relating to the property or the transaction. This additional requirement for honest and fair dealing required defendants to inform plaintiff of the presence of bats in the Apartment, especially given that a daytime inspection of the Apartment would not reveal the presence of nocturnal creatures.

Thus, defendants' documentary evidence does not utterly refute plaintiff's factual allegations regarding ethical and other unlawful violations of the implied warranty of habitability, and the breach of contract claim must stand.

As to the fraud claim, plaintiff states that the "out-of-pocket" rule does not prevent recovery of other consequential damages proximately caused by reliance on fraudulent misrepresentations, provided that such damages naturally flow from the fraud. Instead, recovery is simply limited to that necessary to restore the plaintiff to the position occupied before the fraud occurred. In any event, plaintiff here seeks only out-of-pocket expenses incurred as a consequence of being induced by defendants into leasing the bat-infested Apartment. Such expenses include the one year's worth of rent advanced at signing, her security deposit, and brokerage fee. They also include the expenses related to vacating the Apartment, finding a new place to live, and seeking medical treatment for the potential of rabies contraction.

The negligent infliction of emotional distress claim is proper because case law provides that incidents involving animal scratches and bites which raise concerns of infectious diseases can provide support for such causes of action.

In reply, defendants contend that the claim regarding the implied warranty of habitability is misplaced and properly directed at the landlord under the lease. Case law provides that the warranty does not bind non-parties to a lease, such as the landlord's agents. Also, as a threshold matter, plaintiff failed to submit an affidavit or any other affidavit in opposition to the motion, [*4]and thus failed to controvert any factual statements contained in Healy's and Inman's affidavits. Therefore, the statements therein must be deemed true.

The breach of contract claim remains barred by the Agreement and Rider. The argument based on the Realtors Code is not the law. The documents submitted by defendants utterly refute the purported oral agreement to find a habitable apartment as alleged in the complaint, which in any event, is too vague to be enforced. And, plaintiff's case law cited in support of this cause of action is factually inapposite.

As to the fraud claim, it is now undisputed that Healy and Inman made no misrepresentations regarding the condition of the Apartment, especially as it related to rodents and pests. Moreover, plaintiff concedes that the "out-of-pocket" rule applies to her fraud claims, mandating dismissal. Thus, consequential damages, such as the kind plaintiff seeks here for expenses incurred after the alleged fraud (i.e., costs beyond her rent payment and brokerage commission), are not compensable herein.

And, the claim for emotional distress must fail, as plaintiff fails to allege the necessary element of extreme and outrageous conduct on defendants' part. The cases cited by plaintiff are inapposite, as here, plaintiff, in writing, acknowledged that she took the Apartment "as is" and "not sanitized." The claims here, as noted above, are more properly directed at her landlord and managing agent, not her broker.

Discussion

CPLR 3211(a)(1)

A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim (see Fortis Financial Services, LLC v. Fimat Futures USA, Inc.

Breach of Contract

The elements of a breach of contract claim include the existence of a contract, the plaintiff's performance thereunder, the defendant's breach thereof, and resulting damages (see Harris v. Seward Park Housing Corp., 79 AD3d 425, 913 N.Y.S.2d 161 [1st Dept 2010]; Morris v. 702 E. Fifth St. HDFC, 46 AD3d 478, 850 N.Y.S.2d 6 [1st Dept 2007]).

The first cause of action is based solely on allegations that Sovereign entered into, and breached, a "binding oral agreement" to act as broker for plaintiff to obtain a "habitable" apartment. The Agreement plaintiff executed contains no such term, and notes that it and the Registration Agreement "set forth the entire agreement between us and supersede all other written and verbal agreements." This type of clause, known as a "merger" and/or "no oral modification" clause, is valid and enforceable (see General Obligations Law § 15-301(1) ("A written agreement or other written instrument which contains a provision to the effect that it [*5]cannot be changed orally, cannot be changed by an executory agreement unless such executory agreement is in writing and signed by the party against whom enforcement of the change is sought or by his agent"); see also Eujoy Realty Corp. v. Van Wagner Communications, LLC, 22 NY3d 413 [2013]; Rose v. Spa Realty Associates, 42 NY2d 338, 343 [1977] ("if the only proof of an alleged agreement to deviate from a written contract is the oral exchanges between the parties, the writing controls. Thus, the authenticity of any amendment is ensured")).

Furthermore, it is undisputed plaintiff executed the Rider by which she agreed that she would take the Apartment in "as is" condition, and that the Apartment would be "not sanitized."

Thus, even assuming that the parties entered into an oral agreement before or after entering into the written Agreement, such oral agreement is not binding upon defendants (see Xi Mei Jia v. Intelli-Tec Sec. Services, Inc., 114 AD3d 607, 981 N.Y.S.2d 79 [1st Dept 2014]) (defendants entitled to dismissal of breach of contract claim, as documentary evidence flatly contradicted the cause of action)).

Plaintiff's opposition fails to overcome defendants' showing. Plaintiff does not expand on the alleged oral agreement. And, plaintiff cites no authority for the position that an alleged failure to find a "habitable" apartment constitutes a violation of the Realtors Code so as to support a breach of contract claim, or that there is an implied warranty of habitability that is inherent a real estate broker agreement (cf. Reiter, v. Columbus Real Estate, Inc., 29 Misc 3d 1221(A), 918 N.Y.S.2d 400 (Table) [Sup. Ct., New York County 2010] ("Breach of warranty of habitability requires a landlord tenant relationship to exist between the parties" and "It is an owner or landlord that has the obligations to provide a habitable residential premises . . . .]). Indeed, plaintiff's claim that a violation of the implied warranty of habitability applies to real estate brokers is unavailing, as the warranty of habitability does not bind non-parties to the lease (see Adler v. Ogden Cap Properties, LLC, 42 Misc 3d 613, 976 N.Y.S.2d 857 [Sup Ct New York Cty 2013]). Plaintiff does not allege that defendants were parties to the Lease.

Accordingly, the breach of contract claim is dismissed pursuant to CPLR 3211(a)(1).

CPLR 3211(a)(7)

In determining a motion to dismiss pursuant to this section, the Court's role is deciding "whether the pleading states a cause of action, and, if from its four corners factual allegations are discerned, which taken together, manifest any cause of action cognizable at law, a motion for dismissal will fail" (African Diaspora Maritime Corp. v. Golden Gate Yacht Club, 109 AD3d 204, 968 N.Y.S.2d 459 [1st Dept 2013]; Siegmund Strauss, Inc. v. East 149th Realty Corp., 104 AD3d 401, 960 N.Y.S.2d 404 [1st Dept 2013]).

The standard on the motion is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (see Stendig, Inc. v. Thom Rock Realty Co., 163 AD2d 46, 558 N.Y.S.2d 917 [1st Dept 1990]; Leviton Manufacturing Co., Inc. v. Blumberg, 242 AD2d 205, 660 N.Y.S.2d 726 [1st Dept 1997] (on a motion to dismiss for failure to state a cause of action, the court must accept factual allegations as true)). When considering a motion to dismiss for failure to state a cause of action, the pleadings must be liberally construed (see CPLR 3026; Siegmund Strauss, supra) and the court must "accept the facts as alleged in the complaint as true, accord plaintiffs "the benefit of every possible favorable inference," and "determine only whether the facts as alleged fit into any cognizable legal theory" (Siegmund Strauss, supra; Nonnon v. City of [*6]New York, 9 NY3d 825 [2007]; Leon v. Martinez, 84 NY2d 83, 87-88 [1994]).

In contrast to CPLR 3211(a)(1), the court may consider affidavits when resolving a motion made under CPLR 3211(a)(7) (see Leon v. Martinez, 84 NY2d 83 [1994]); Wilhelmina Models, Inc. v. Fleisher, 19 AD3d 267, 797 N.Y.S.2d 83 [1st Dept 2005]). "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, 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, again dismissal should not eventuate" (Guggenheimer v. Ginzburg, 43 NY2d 268 [1977]). In other words, "dismissal results only if the movant demonstrates conclusively that the plaintiff has no cause of action, or that a material fact as claimed by the pleader to be one is not a fact at all'" (Laquila Group, Inc. v. Hunt Const. Group, Inc., 44 Misc 3d 1203(A), 2014 WL 2919334 [Sup Ct New York Cty 2014], citing Sokol v. Leader, 74 AD3d 1180, 1181-1182, 904 N.Y.S.2d 153 [2d Dept 2010]).

Fraud/Fraudulent Inducement and Aiding and Abetting Fraud

The elements of a claim for fraud are a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the party, and damages (see Eurycleia Partners, LP v. Seeward & Kissel, LLP, 12 NY3d 553, 559 [2009]).

The elements of fraudulent inducement are: (1) a false representation of material fact; (2) known by the speaker to be untrue; (3) made with the intention of inducing reliance and forbearance from further inquiry; (4) that is justifiably relied upon; and (5) results in damages (see Schumaker v. Mather, 133 NY 590 [1892]; Levy v. Bartfeld, 2014 WL 1028714 [Sup Ct New York Cty 2014]). Additionally, CPLR § 3016 requires particularity in the pleading of a fraud cause of action (see Levy, supra).

Here, the second cause of action, whether it is evaluated as one for fraud or fraudulent inducement must be dismissed, because defendants have established that there was no misrepresentation regarding the presence (or absence) of rodents or pests in the building (and thus Apartment). In his affidavit submitted with the moving papers, Healy states that "plaintiff asked me about rodents and pests in the building, and I answered that as we were talking about a New York City building, there were of course rodents and pests, but that the building provided exterminator service." Inman states in his affidavit that after plaintiff thoroughly inspected the Apartment for 45 minutes, she "fully questioned" him about the building, as well as rodents/pests in the building, and he explained that a monthly exterminator was provided to all tenants free of charge. Moreover, as noted above, per the Rider, plaintiff agreed to take the Apartment "as is" and "not sanitized."

In opposition, plaintiff submitted only a memorandum of law by her counsel, and did not provide an affidavit or any other evidence refuting defendants' factual assertions. Thus, plaintiff is deemed to have admitted defendants' statements (see SportsChannel Associates v. Sterling Mets, L.P., 25 AD3d 314, 807 N.Y.S.2d 61 [1st Dept 2006], citing Kuehne & Nagel, Inc. v. Baiden, 36 NY2d 539, 544 [1975]; see also Tortorello v. Carlin, 260 AD2d 201, 206, 688 N.Y.S.2d 64 [1st Dept 1999] ("the factual allegations of defendants' moving papers are appropriately deemed admitted' . . . Even if this Court were to reach the merits, on the record before the Court, the factual allegations of the moving papers, uncontradicted by plaintiff, are sufficient to entitle defendants to judgment dismissing the complaint as a matter of law")). Thus, [*7]the alleged material fact of misrepresentation has been shown to "not be a fact at all" based on the undisputed submissions by defendants (see Guggenheimer, supra).

Accordingly, the second cause of action (as well as the third cause of action for aiding and abetting fraud, derivative of this claim), must be dismissed.^[FN1]

Negligence

To establish a prima facie case of negligence under New York law, a plaintiff must demonstrate that the defendant owed him or her a duty of reasonable care, a breach of that duty, and a resulting injury proximately caused by the breach (see Elmaliach v. Bank of China Ltd., 110 AD3d 192, 971 N.Y.S.2d 504 [1st Dept 2013]). Absent a duty of care to the injured party, a defendant cannot be held liable in negligence (see Palsgraf v. Long Island R.R. Co., 248 NY 339 [1928]). The question of whether a duty of care exists is for the court to decide (De Angelis v Lutheran Med. Ctr., 58 NY2d 1053 [1983]; Stankowski v. Kim, 286 AD2d 282, 730 N.Y.S.2d 288 [1st Dept 2001], lv dismissed 97 NY2d 677 [2001]).Here, plaintiff's claim of negligence is based on alleged duties to act with reasonable care regarding: the marketing and provision of information about the Apartment; to not make materially false representations and warranties to plaintiff; and to provide accurate and complete information about the Apartment to plaintiff before she signed the Lease. The alleged breach occurred when defendants provided "materially incomplete and inaccurate information" about the Apartment. Thus, plaintiff's "negligence" claim is based on the same allegations of misrepresentations that constitute her fraud claim. As such, it is dismissed for the reasons articulated in the preceding section (see Gale v. Animal Medical Ctr., 108 AD3d 497, 498-499, 968 N.Y.S.2d 563 [2d Dept 2013] ("Since the gross negligence cause of action arose from the same facts as the . . . fraud [cause] of action, the gross negligence cause of action is duplicative and, thus, cannot be sustained")).

Negligent Misrepresentation

The elements of a claim for negligent misrepresentation are: "(1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information" (J.A.O. Acquisition Corp. v. Stavitsky, 8 NY3d 144, 148, rearg. denied 8 NY3d 939 [2007]).

This cause of action is based on the allegations of misrepresentations as described above, and also on defendants' alleged failure to act and perform "in accordance with standards and customs in the real estate profession, and in connection with their performance as brokers and/or agents." As discussed, supra, plaintiff cites no authority for the applicability here of the Realtors [*8]Code (and the court found no authority for same in its research). And, even assuming the Realtors Code was applicable, defendants' unchallenged submissions demonstrate that no misrepresentations were made. Thus, and for the reasons articulated in the preceding sections, plaintiff's claim of negligent misrepresentation fails.

Fraudulent Concealment

The elements of a claim for fraudulent concealment are: (1) an omission of a material fact; (2) intent to defraud; (3) duty to disclose, (4) reasonable reliance on the omission, and (5) damages suffered (see Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 178 [2011]). The elements of fraudulent concealment are the same as the elements required for fraudulent misrepresentation with one addition — it must be shown that "the defendant had a duty to disclose material information and that it failed to do so" (see P.T. Bank Central Asia v. ABN Amro Bank, N.V., 301 AD2d 373, 754 N.Y.S.2d 245 [1st Dept 2003]).

This claim fails for the reasons stated in the preceding sections. Even assuming defendants had a duty to disclose material information, there remain no misrepresentations which would render this cause of action viable.^[FN2]

Negligent Infliction of Emotional Distress

The elements of an action for negligent infliction of emotional distress are a breach of a duty owed to plaintiff which exposes him or her to an unreasonable risk of bodily injury or death (see Bovsun v. Sanperi, 61 NY2d 219 [1984]). While physical injury is not a necessary element of a cause of action to recover for negligent infliction of emotional distress, such a cause of action must generally be premised upon conduct that unreasonably endangers a plaintiff's physical safety or causes the plaintiff to fear for her own safety (see Perl v. Burkes, 14 Misc 3d 1237(A), 836 N.Y.S.2d 502 [Sup Ct New York Cty 2007]).

Extreme and outrageous conduct is also an element of negligent infliction of emotional distress (see Lau v. S & M Enters., 72 AD3d 497, 498, 898 N.Y.S.2d 42 [1st Dept 2010]; Goldstein v. Massachusetts Mut. Life Ins. Co., 60 AD3d 506, 875 N.Y.S.2d 53 [1st Dept 2009]). To support the element of extreme and outrageous conduct, plaintiff must show that defendants' conduct was "beyond all possible bounds of decency" and "utterly intolerable in a civilized community" (see Howell v. New York Post Co., 81 NY2d 115,122 [1993]).

Plaintiff's claim must fail, as the parties' submissions demonstrate the absence of the element of extreme and outrageous conduct by defendants. Defendants assisted plaintiff in obtaining the Apartment. Inman attended an inspection of the Apartment with plaintiff, and advised that the building had an exterminator who would perform monthly services at the building's expense. Healy stated that there "were of course rodents and pests" in the building, but that it provided extermination services.

Although the incident as described by plaintiff appears to have been traumatic, it alone does not equate to defendants' actions being extreme and outrageous (see Bando v. Achenbaum, 234 AD2d 242, 651 N.Y.S.2d 74 [2d Dept 1996] (alleged misrepresentations by broker to plaintiff home purchaser regarding extent of termite infestation, even if accepted as true, did not rise to the level of extreme and outrageous conduct)).

Conclusion

Based on the foregoing, it is hereby

ORDERED that defendants' motion pursuant to CPLR 3211(a)(1) and (7) for dismissal of plaintiff's complaint is granted, and the complaint is dismissed with prejudice; and it is further

ORDERED that defendants shall serve a copy of this order with notice of entry upon plaintiff within 20 days of entry.

This constitutes the decision and order of the Court.Dated: August 11, 2014_______________________________

Based on the accompanying Memorandum Decision, it is hereby

ORDERED that defendants' motion pursuant to CPLR 3211(a)(1) and (7) for dismissal of plaintiff's complaint is granted, and the complaint is dismissed with prejudice; and it is further

ORDERED that defendants shall serve a copy of this order with notice of entry upon plaintiff within 20 days of entry.

This constitutes the decision and order of the Court.