The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 38, 39, 40 were read on this motion for DISMISSAL.

This contract action arises from a construction project to build out leased commercial space in lower Manhattan. Plaintiff, FiDi Creatives LLC, alleges that it hired defendant contractor Skapos LLC to perform the build-out work; and that Skapos did so incompetently.

Plaintiff brought this action by summons with notice against several parties, including Skapos, its principal, defendant Shun-Ping Liu,^[FN1] and one of its project managers, defendant Jessica Lee. (See NYSCEF No. 1.) These defendants demanded a complaint (see NYSCEF No. [*2]3); and plaintiff timely filed its complaint (see NYSCEF No. 4). The complaint asserts a variety of claims against these defendants, sounding in breach of contract, unjust enrichment, fraud, breach of fiduciary duty, and other legal theories. (See id. at 8-13.)

Skapos, Liu, and Lee move to dismiss under CPLR 3211 (a) (1), (a) (7), and (a) (8). (See NYSCEF No. 5 [notice of motion].) A week after the motion's return date, plaintiff filed an amended complaint. (See NYSCEF No. 23.) The complaint added new allegations and causes of action; it also purported to add a new party plaintiff, Mimi Yu-Chen Lin. The County Clerk's Office rejected plaintiff's attempt to amend the case caption to reflect the addition of Lin as a plaintiff, stating that the time to add a party under CPLR 3025 had expired. Plaintiff's counsel then emailed this court (with a copy to opposing counsel) to raise this issue. This court sought letter briefing from the parties, which they have provided. (See NYSCEF Nos. 38-40.) The motion to dismiss, and the related question of the permissible scope of amendment of the complaint, are ripe for decision.

The court concludes that plaintiff may amend its complaint as of right; and, considering the issue as a matter of first impression, that plaintiff may also add Lin as a plaintiff as of right. Applying defendants' motion to dismiss to the amended complaint, the court grants dismissal of plaintiffs' claims against Lee under CPLR 3211 (a) (8), and grants in part and denies in part the request to dismiss their claims against Skapos and Liu under CPLR 3211 (a) (1) and (a) (7).

As an initial matter, this court agrees with plaintiff that CPLR 3025 permits it to amend its complaint as of right during the pendency of defendants' motion to dismiss.^[FN2] CPLR 3025 (a) provides that a "party may amend his pleading once without leave of court . . . at any time before the period for responding to it expires." Under CPLR 3211 (f), the service of a motion to dismiss extends the time for movant to serve a responsive pleading until 10 days after service of notice of entry of an order denying the motion to dismiss. Because defendants' motion to dismiss has not yet been decided, the deadline for plaintiff to amend as of right necessarily has not yet expired. (See Roam Capital, Inc. v Asia Alternatives Mgt. LLC, 194 AD3d 585, 585-586 [1st Dept 2021].)

Plaintiff's filing of an amended complaint does not, however, render moot defendants' motion to dismiss, because the amendment might not address (or resolve) the grounds for dismissal in that motion. Therefore, defendants may, if they choose, ask this court to treat their motion as being directed to plaintiff's amended complaint. (See Sage Realty Corp. v Proskauer Rose LLP, 251 AD2d 35, 38 [1st Dept 1998].) This court construes defendants' post-submission letter brief, which addresses at length the sufficiency of the amended complaint (see NYSCEF No. 39 at 3-6), as making that request.

The court considers first the extent to which the amended complaint survives defendants' motion to dismiss when brought only on behalf of FiDi Creatives, before addressing whether plaintiff may add Lin as a plaintiff as of right.

Defendant Lee moves under CPLR 3211 (a) (8) to dismiss the claims against her for lack of personal jurisdiction due to improper service.^[FN3] The motion is granted.

Plaintiff personally served its summons with notice on Skapos and Liu under CPLR 311 and CPLR 308 (2), respectively. (See NYSCEF No. 14 [affidavit of service on Skapos]; NYSCEF No. 2 [same, on Liu].) It is undisputed that plaintiff did not also personally serve Lee with a copy of the summons with notice. Instead, in opposing Lee's motion to dismiss, plaintiff focuses on Lee's demand for the complaint. Plaintiff contends that because Lee e-filed that demand, she implicitly consented to e-filing papers in this action, and therefore that "service on [her] of the complaint by e-filing was not only proper but required" by the court's e-filing rules. (NYSCEF No. 15 at 3, citing 22 NYCRR 202.5-bb.) This contention is unpersuasive.

Section 202.5-bb of the Uniform Rules provides that "[p]ersonal service of initiating documents upon a party" in an action subject to mandatory e-filing "shall be made as provided in Article 3 of the Civil Practice Law and Rules . . . or by electronic means if the party served agrees to accept such service." (22 NYCRR 202.5-bb [b] [3].) The initiating document in this action was the summons with notice. Plaintiff does not attempt to argue that Lee consented to electronic service of that document. And Lee did not voluntarily appear thereafter: CPLR 3012 (b) expressly provides that a demand for a complaint does not itself constitute an appearance. Thus, regardless whether plaintiff would otherwise have been entitled to serve the complaint on Lee through e-filing on NYSCEF, the failure to effect CPLR-compliant service on her of either the summons or the complaint deprives this court of personal jurisdiction.

Skapos and Liu move under CPLR 3211 (a) (1) and (a) (7) to dismiss FiDi Creatives' claims against them. Applying defendants' arguments for dismissal to the amended complaint, the motion to dismiss is granted, except with respect to FiDi Creatives' unjust-enrichment claim as against Skapos.

FiDi Creatives's first through third claims against Skapos and Liu in the amended complaint sound in contract. But as these defendants argue (see NYSCEF No. 12), the record establishes that the contract at issue was between Skapos and Lin, not among Skapos, Lin, and FiDi Creatives. The contract, prepared by Skapos, reflects that the project client is "Mimi Lin." (NYSCEF No. 17 at 1.) The contract's provisions, although referring repeatedly to the client, do not mention FiDi Creatives. (See generally id. at 1-4.) And the contract is signed solely by Lin, with no indication in the signature block that she is signing on behalf of anyone but herself. (See id. at 4; cf. Bank of America N.A. v ASD Gem Realty LLC, 205 AD3d 1, 7 [1st Dept 2022] [explaining that in determining whether an agent for a disclosed principal did or did not intend to [*4]make herself individually liable on a contract, "the best indicator of that intent is the form of signature" of the contract"].) Further, on reply, defendants submit a copy of a Lien Law § 38 demand for an itemized statement supporting Skapos's mechanics lien on the premises—issued in the name of "Mimi Yu-Chen Lin, as contractor for the real property" without mentioning FiDi Creatives.^[FN4] (NYSCEF No. 22.) Absent a contract between FiDi Creatives and Skapos, no contract-based claims will lie.

FiDi Creatives's fourth through seventh and seventeenth claims against Skapos and Liu in the amended complaint sound in fraud. FiDi Creatives does not sufficiently allege that it was injured because it—as opposed to Lin acting in her personal capacity—reasonably relied on misrepresentations or material omissions committed by these defendants. The eighth and ninth claims sound in negligence. The allegations supporting these claims, however, do not establish that Skapos (and its principal Liu) would owe FiDi Creatives a tort duty to perform the contractual work in a professional and competent fashion, absent any contract between them.^[FN5] The tenth claim is for breach of fiduciary duty. The amended complaint identifies no facts showing that any relationship existed between Skapos/Liu and FiDi Creatives, much less a relationship of trust and confidence of the sort needed to give rise to a fiduciary duty. The eleventh through fourteenth claims assert that Skapos should be held vicariously liable for allegedly wrongful acts by defendants Liu and Lee. Even assuming that these claims could state a freestanding cause of action (rather than merely a basis for liability on other causes of action), plaintiff has not shown that Liu and Lee committed wrongful acts against FiDi Creatives. The sixteenth claim, for willful exaggeration of lien, does not allege that the asserted exaggeration harmed FiDi Creatives in addition to Lin. This defect is especially marked because the lien itself names only Lin. (See NYSCEF No. 35.)

The amended complaint's fifteenth cause of action sounds in unjust enrichment. FiDi Creatives has sufficiently alleged, and provided supporting documentary evidence in the form of checks (see NYSCEF Nos. 18 and 19), that it paid Skapos and has not received full value for those payments.^[FN6] FiDi Creatives thus has a viable unjust-enrichment claim against Skapos. But it has not shown that it paid money, or otherwise conferred a benefit, on Liu individually. The fifteenth cause of action is thus subject to dismissal as against Liu.

In short: If FiDi Creatives cannot name Lin as an additional plaintiff under CPLR 1003, the only cause of action that may go forward is an unjust enrichment claim against Skapos. The question, then, is whether Lin may be added as a plaintiff as of right, as FiDi Creatives contends—and, if so, what viable claims Lin has against Skapos and Liu.

CPLR 1003 provides that a plaintiff may add a new party as of right "within twenty days after service of the original summons or at any time before the period for responding to that summons expires or within twenty days after service of a pleading responding to it." Plaintiff served its summons with notice on September 22, 2023. (NYSCEF No. 1.) Defendants appeared and demanded a complaint on October 14, 2023, 22 days after service of the summons. (NYSCEF No. 3.) On November 3, 2023, 20 days after defendants' demand, plaintiff served and filed a complaint. (NYSCEF No. 4.) On December 17, 2023, 44 days after filing the complaint, plaintiff filed an amended complaint, adding a second plaintiff, and asked the County Clerk to amend the caption accordingly. (See NYSCEF No. 23 [amended complaint]; NYSCEF No. 37 [notice to County Clerk].)

Plaintiff's attempt in its amended complaint to add a new party to the action thus came more than 20 days after service of the original summons and more than 20 days after service of defendants' demand for the complaint. If, as defendants contend, the demand for the complaint qualifies for CPLR 1003 purposes as the "pleading responding to" the summons with notice, plaintiff's time to add a party as of right had expired before plaintiff filed the amended complaint. If, however, the "pleading responding to" a summons with notice is defendant's answer—as under CPLR 3025 (a)—plaintiff's time to add a new party as of right has not yet run.

The parties have not provided, and this court's research has not found, any appellate precedent addressing this unusual question. Considering the matter for itself, this court concludes that the relevant responsive filing for CPLR 1003 purposes is the answer. This court is not persuaded by defendants' contrary argument that because this action was commenced by summons with notice, the relevant filing was their demand for the complaint. Plaintiff may therefore add Lin as another plaintiff as of right.

CPLR 1003 provides three deadlines: one tied to service of the summons, one to the period for responding to the summons, one to the response to the summons. Crucially, the statute defines the last of these deadlines as tied to service of a responsive pleading. CPLR 3011, in turn, carefully lists the different kinds of filings that qualify as pleadings—and provides that its list is exhaustive "unless the court orders otherwise." The demand for a complaint, following service/filing of a summons with notice, is not included in that list.

Defendants focus on the middle deadline of the three imposed by CPLR 1003. They argue that when an action is commenced by summons with notice, the "period for responding to that summons" is the period set by CPLR 320 (a) for a defendant to demand the complaint under CPLR 3012 (b)—and that this period (here, 30 days) expired before plaintiff's request to add Lin as a plaintiff. (See NYSCEF No. 39 at 2 n 1.) This argument is unpersuasive.

Among other things, a party need not demand a complaint at all, following service of a summons with notice. Instead, all that is required to trigger plaintiff's obligation to serve the complaint is service by defendant of its notice of appearance. (See CPLR 3012 [b].) It would make no sense to treat defendant's tactical decision about whether to elicit plaintiff's complaint by express demand or simply by entering an appearance also to affect the scope of plaintiff's right to join a new party without stipulation or court order. Defendants' preferred reading would also mean that plaintiff's choice between commencing the action by summons with notice, versus doing so by summons and complaint, could in some circumstances affect when (and thus whether) plaintiff could join a new party as of right. That makes no sense, either.

Further, when the Legislature amended CPLR 1003 to permit joinder of a new party as of right (see L 1996, ch 39), it harmonized CPLR 1003 with CPLR 3025 (a)'s existing procedure for amending the complaint as of right. Yet on defendant's reading of CPLR 1003's time limits, when a plaintiff commences its action by summons with notice, the period for joining new parties as of right could be shorter than for amending the complaint's allegations as of right—reopening the gap between CPLR 1003 and CPLR 3025 that the 1996 amendment closed.

Defendants do not explain why the choice between summons-with-notice and summons-and-complaint should have such unexpected and far-reaching consequences for the plaintiff's procedural rights in a given action. Nor does this court see a reason why it should.

Applying this interpretation of CPLR 1003 to the circumstances presented here, the court agrees with plaintiff that it could add Lin as a second plaintiff as of right in its amended complaint. The court therefore considers whether and to what extent Lin has stated claims against Skapos and Liu, taking into account the arguments raised by these defendants in their motion to dismiss and supplemental letter briefing.

It is undisputed that Lin had a contract with Skapos. Lin has sufficiently alleged that Skapos breached that contract; and, separately, that Skapos breached its implied covenant of good faith and fear dealing under the contract. Skapos's motion to dismiss Lin's first two causes of action is denied. Lin did not, however, have a contract with Liu. Nor has Lin alleged facts that would give rise to breach of contract liability (express or implied) on Liu's part, as Skapos's disclosed agent, for breach of contract by Skapos. Liu's motion to dismiss Lin's first two causes of action is granted. The third cause of action is dismissed against both defendants as duplicative.

With respect to the fourth cause of action, Lin has sufficiently pleaded a claim for fraudulent inducement against Liu; and has sufficiently alleged that Liu's conduct was in the scope of his employment by Skapos also to state a cause of action for fraud against Skapos on a vicarious-liability theory. The fifth cause of action, brought only against Liu, is dismissed as duplicative of the fraud claim; and the sixth cause of action, also brought only against Liu, is dismissed as duplicative of the contract claims. The seventh and tenth causes of action, sounding in breach of fiduciary duty, are dismissed because no fiduciary relationship arose from the parties' arms-length contractual dealings. To the extent that those claims are treated as sounding solely in fraud, they duplicate the contract claims.

The eighth and ninth causes of action, sounding in negligence and malpractice, are dismissed. The negligence claim is duplicative of the contract claims. And Lin has not established that general contractors owe an independent duty of professional competence in the sense required to give rise to a claim for malpractice. To the contrary, the Third Department has said, albeit in dicta, that "general contractors are not professionals like architects and engineers." (State v Lundin, 91 AD2d 343, 346 [3d Dept 1983].)

The eleventh through fourteenth claims are dismissed. To the extent that Skapos may be held vicariously liable for actionable fraudulent conduct by Liu, that liability is encompassed by the fourth cause of action. To the extent that the alleged fraud by Liu is not separately actionable because it is duplicative of Lin's contract claims, no vicarious liability would exist; and Lin's contract claim against Skapos is already being permitted to proceed in any event. With respect to [*6]the alleged conduct by Lee for which Lin seeks to hold Skapos vicariously liable under the thirteenth cause of action, Lin has not alleged that she paid the allegedly wrongful fees and charges invoiced to her by Lee.^[FN7] And the complaint does not sufficiently allege what construction services were the subject of misrepresentations, by Lee to Lin, that are outside the scope of Lin's contract claim against Skapos.

The fifteenth claim is dismissed as asserted by Lin: She does not allege that she personally, rather than FiDi Creatives, paid Skapos. Nor, in any event, does she allege that any payments that were made by her were received and retained by Liu individually.

The sixteenth claim is dismissed. Lien Law § 39-a provides a cause of action for damages to the owner "[w]here in any action or proceeding to enforce a mechanic's lien upon a private or public improvement the court shall have declared said lien to be void on account of wilful exaggeration," pursuant to Lien Law § 39. Skapos has not brought a proceeding to foreclose the lien. Nor does Lin allege that she has acted to force Skapos to do so by serving a Lien Law § 59 notice demanding that Skapos bring a lien-foreclosure proceeding.^[FN8]

The seventeenth claim is dismissed. This claim alleges a conspiracy to commit fraud, entered into by Skapos and two of its employees (Liu and Lee). It is barred by the intracorporate-conspiracy doctrine, under which "the officers, employees, and agents of the same corporate entity acting within their scope of employment, along with the corporate entity itself, are considered a single entity and are legally incapable of conspiring with each other." (Savarese v City of New York, 547 F Supp 3d 305, 343 [SD NY 2021].)

Accordingly, it is

ORDERED that proposed plaintiff Mimi Yu-Chen Lin is joined as of right as a second plaintiff in this action upon service of notice of entry; and it is further

ORDERED that upon service of notice of entry, plaintiffs' amended complaint, in the form appearing at NYSCEF No. 23, shall be deemed plaintiffs' operative pleading in this action; and it is further

ORDERED that defendant Lee's motion to dismiss all claims against her for lack of personal jurisdiction is granted; and the amended complaint is dismissed in its entirety as against defendant Lee, with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that plaintiffs' claims asserted against Skapos and Liu are severed and shall continue;

ORDERED that the motion to dismiss of defendants Skapos and Liu is deemed directed to plaintiffs' amended complaint, and the motion is granted in part and denied in part as follows:

(i) The motion to dismiss FiDi Creatives' claims against both Skapos and Liu is granted as to all claims against both defendants except with respect to the fifteenth cause of action, and the motion is granted as to that cause of action as against defendant Liu and [*7]denied as against defendant Skapos;

(ii) The motion to dismiss Lin's claims against Skapos is denied with respect to the first, second, and fourth causes of action; and granted with respect to the third, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, and seventeenth causes of action; and

(iii) The motion to dismiss Lin's claims against Liu is denied with respect to the fourth cause of action; and granted with respect to the first, second, third, fifth, sixth, seventh, eighth, ninth, tenth, thirteenth, fourteenth, fifteenth, sixteenth, and seventeenth causes of action;

ORDERED that plaintiffs shall serve a copy of this order with notice of its entry on all parties; on the office of the General Clerk (by the means set forth in the court's e-filing protocol, available on the e-filing page of the court's website, https://ww2.nycourts.gov/courts/1jd/supctmanh/E-Filing.shtml), which shall update its records to reflect the addition of plaintiff Lin and amend the caption accordingly in the form appearing at NYSCEF No. 23; on the office of the County Clerk (by the means set forth in the court's e-filing protocol), which shall accept plaintiffs' amended complaint for filing in the form appearing NYSCEF No. 23, and which shall grant judgment in favor of defendant Lee accordingly.