Decision and order The defendant has moved pursuant to CPLR §3212 seeking summary judgement dismissing all of plaintiff’s claims and awarding summary judgement on the defendant’s counterclaim. The plaintiff has opposed the motion. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination. As recorded in prior orders, on November 24, 2017 the plaintiff leased a charter boat, named the Capt. JP II, from the defendant for a period of two years commencing on April 15, 2018 for $25,000 per month. The agreement provided the plaintiff with the option to purchase the boat at the end of the lease period and also required the plaintiff to provide a deposit of one million dollars. On April 21, 2018 the United States Coast Guard conducted an inspection of the vessel and noted numerous deficiencies including mechanical and electrical issues that were installed by the defendants. Two months later the defendant seized the boat from its berthing dock in Brooklyn and took it to upstate New York effectively cancelling the contract with the plaintiff. The plaintiff instituted this action and has alleged causes of action for conversion and replevin, restitution and unjust enrichment, fraud, breach of contract, breach of covenant of good faith and fair dealing, declaratory relief and an injunction. In prior decisions the court has already determined that the plaintiff was rendered in default of the Bare Boat Charter/Lease Purchase Agreement when the Coast Guard altered the certificate of inspection by noting mechanical and electrical deficiencies. To the extent that determination resolved some of the causes of action the defendant now seeks to dismiss all the causes of action. As noted, the motion is opposed. Conclusions of Law Where the material facts at issue in a case are in dispute summary judgment cannot be granted (Zuckerman v. City of New York, 49 NYS2d 557, 427 NYS2d 595 [1980]). Generally, it is for the jury, the trier of fact to determine the legal cause of any injury, however, where only one conclusion may be drawn from the facts then the question of legal cause may be decided by the trial court as a matter of law (Marino v. Jamison, 189 AD3d 1021, 136 NYS3d 324 [2d Dept., 2021). The prior decisions of the court already resolved the first two causes of action and the sixth and seventh causes of action. The court ordered the defendant to return to the plaintiff all of the plaintiff's possessions, however, the court also held the plaintiff has no possessory interest in the boat. Thus, the motion seeking summary judgement dismissing the first two causes of action and the sixth and seventh causes of action is granted. The next two causes of action are fraud and breach of contract. Where a claim to recover damages for fraud "is premised upon alleged breach of contractual duties and the supporting allegations do not concern misrepresentations which are collateral or extraneous to the terms of the parties agreement, a cause of action sounding in fraud does not lie" (McKernin v. Fanny Farmer Candy Shops, Inc., 176 AD2d 233, 574 NYS2d 58, [2nd Dept., 1991]). Therefore, the motion seeking to dismiss the fraud cause of action is granted. Concerning the breach of contract cause of action, the only viable claim in this regard concerns the return of the down payment. The defendant, thus, seeks to dismiss the claim seeking, essentially, a return of the down payment. First, there are no questions of fact that defendant James Pledger was not a party to the contract and cannot be liable for any breaches. The first page of the charter agreement states that the agreement is between JDJ LLC, the ‘owner’ of the vessel, and the plaintiff. The agreement is executed by James Pledger as the owner of JDJ LLC on the last page of the agreement. Beneath those executions the agreement states that James Pledger, JDJ LLC, Owner, hereby acknowledges the receipt of the sum on ONE MILLION DOLLARS AND ZERO CENTS ($1,000,000) security deposit paid on _.” and James Pledger signed a second time (see, Bare Boat Charter/Lease Purchase Agreement, page 10 [NYSCEF Doc. No. 2]). That second signature did not imply individual liability on the part of Mr. Pledger and surely did not imply a separate agreement only with Pledger concerning the security deposit. Rather, it was simply an addendum to the agreement which included a security deposit. Indeed, a security deposit, without the underlying contract, does not serve to secure anything at all. Thus, the security deposit necessarily was part and parcel of the agreement. Moreover, Pledger as a member of the entity that owned the vessel had the right to deposit the security deposit in any manner he saw fit. That deposit does not serve to undermine or question JDJ LLC’s ownership of the vessel and its contractual rights to the security deposit. Nor does it raise questions that pledger individually entered into a contract regarding only the security deposit. Consequently, the motion seeking to dismiss Pledger individually from the lawsuit is granted. Turning to the breach of contract claim, the defendant asserts that there are no questions of fact the defendant did not breach the agreement by failing to return the security deposit. However, the defendant concedes that the agreement does not discuss the parameters when the security deposit should be returned. Thus, there are surely questions of fact whether indeed the security agreement must be returned. Moreover, while the court already concluded in earlier decisions that the defendant did not breach the agreement by repossessing the vessel, there are still questions regarding the amount plaintiff owes the defendant for unpaid rental use, if any. These issues cannot be summarily decided. Furthermore, there are significant issues that remain concerning the precise amount of damages that flow from the breaches already decided. Therefore, it cannot be concluded as a matter of law the defendant is entitled to keep one million dollars of a security deposit for a lease that lasted three months. Therefore, the motion seeking to dismiss this cause of action is denied. Likewise, the motion seeking summary judgement concerning the counterclaim for breach of contract is also denied. Lastly, the fifth cause of action alleges a breach of the covenant of good faith and fair dealing. Likewise, this cause of action is duplicative of breach of contract when based upon the same facts and circumstances (see, Fuoco Group LLP v. Weisman & Co., CPAs, _AD3d_, _NYS3d_, 2023 WL 8440794 [2d Dept., 2023]). Therefore, the motion seeking summary judgement dismissing this cause of action is granted. Thus, all of the causes of action are hereby dismissed except for the breach of contract cause of action concerning the security deposit and damages, if any, only as to defendant JDJ LLC. Those issues must be resolved by a trier of fact. So Ordered. Dated: January 9, 2024
