798 Tremont Holding LLC v. Wefile LLC
| Decision Date | 19 April 2023 |
| Docket Number | Index No. 815112/22E |
| Citation | 2023 NY Slip Op 50352 (U) |
| Parties | 798 Tremont Holding LLC, Plaintiff(s), v. Wefile LLC D/B/A LIBERTY TAX SERVICE, WEFILE INC., NY TAX INC., and NEXTPOINT FINANCIAL INC., Defendant(s). |
| Court | New York Supreme Court |
Unpublished Opinion
Counsel for Plaintiff: Gordon Rees Scully Mansukhani LLP
Counsel for Defendants: Ani & Asspciates, PPLC
In this action for, inter alia, breach of contract defendants move seeking an order, inter alia, (1) pursuant to CPLR § 3211(a)(8), dismissing the amended complaint against defendant NEXTPOINT FINANCIAL INC. (NP) on grounds that because NP is a nondomiciliary who transacts no business in New York State, this Court has no personal jurisdiction over it; (2) pursuant to CPLR § 3211(a)(1) dismissing the amended complaint against defendants NY TAX INC. (Tax) and defendants WEFILE INC (WF) and WEFILE, LLC D/B/A LIBERTY TAX (Liberty) on grounds that the documentary evidence evinces that neither Tax nor WF are parties to the relevant agreement alleged to have been breached by Tax and WF and that Liberty did not breach the relevant agreement between the parties; and (3) pursuant to CPLR § 3211(a)(7), dismissing the causes of action in the amended complaint for promissory estoppel and unjust enrichment because to the extent they are duplicative of the claim for breach of contract, the amended complaint fails to state a cause of action for the foregoing claims. Plaintiff opposes the instant motion asserting, inter alia, that with regard to NP, defendants fail to establish the absence of personal jurisdiction. With regard to Tax and WF, plaintiff contends that the documentary evidence evinces that while Tax and WF were not parties to the agreement between Liberty and plaintiff, when Tax assigned the original agreement to WF, who then assigned it to Liberty, neither Tax nor WF were expressly relieved of liability thereunder, such that Tax and WF are liable for a breach of the agreement by Liberty. With respect to the cause of action for breach of contract, plaintiff contends that the amended complaint states a cause of action for the same and that documentary evidence establishes that Liberty actually renewed the lease and then breached it. Lastly, plaintiff avers that the amended complaint states a cause of action for both promissory estoppel and unjust enrichment.
For the reasons that follow hereinafter, defendants' motion is granted, in part.
The instant action is for breach of contract, promissory estoppel and unjust enrichment. According to the amended complaint, on January 1, 2013, Tax entered into an agreement - a lease - with nonparty Maleh Brothers, LLC (Maleh), plaintiff's predecessor in interest, whereby the former leased from the latter, the premises located at 798 East Tremont Avenue, Bronx, NY 10460 (798). Subsequently, Maleh assigned the lease to plaintiff. On July 21, 2016, Tax assigned the lease to WF and on December 1, 2019, WF assigned the lease to Liberty. Upon assignment, neither WF nor Tax were ever relieved of their obligations under the foregoing lease and subsequent assignment. On or about December 1, 2019, Liberty notified plaintiff of its intent to renew the lease resulting in the execution of an amendment to the lease, which extended the lease's term to May 31, 2022 and provided an option whereby Liberty could, by exercising the option prior to January 1, 2022, extend the lease by an additional three years. On March 16, 2022, by letter of renewal and acceptance, Liberty exercised the option in the amendment to the lease. On March 29, 2022, plaintiff accepted the exercise of the option, conveyed the same to Liberty, and the lease was renewed through May 31, 2025. On May 31, 2022, Liberty made an initial rent payment towards the renewed lease totaling $9,286.48. On June 1, 2022, Liberty rescinded and reversed the foregoing payment and on that same date, vacated 798.
Based on the foregoing, plaintiff interposes three causes of action. The first cause of action is for breach of contract, wherein it is alleged that on March 16, 2022, defendants exercised their option to renew the lease, which on March 29, 2022, despite the belated exercise of the option, plaintiff waived the belated notice and accepted defendants' option to renew the lease. Despite the foregoing, on May 31, 2022, defendants rescinded the renewal and reversed a payment made in furtherance thereof. Accordingly, plaintiff alleges that defendants breached the agreement between the parties. The second cause of action is for promissory estoppel, wherein it is alleged that plaintiff relied on Liberty's exercise of its option to renew the lease, did not find a new tenant to replace Liberty, and that as result of Liberty's recision of the option and then vacature from 798, plaintiff sustained damages. The third cause of action is for unjust enrichment, wherein it is alleged that defendants were unjustly enriched by Liberty's exercise of its option to renew the lease and recision of the same after plaintiff's acceptance thereof.
Pursuant to CPLR § 3211(a)(1), a pre-answer motion for dismissal based upon documentary evidence should only be granted when "the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 326 [2002]; Leon v Martinez, 84 N.Y.2d 83, 88 [1994]; IMO Industries, Inc. v Anderson Kill & Olick, P.C., 267 A.D.2d 10, 10 [1st Dept 1999]). Much like on a motion pursuant to CPLR § 3211(a)(7), on a motion to dismiss pursuant to CPLR § 3211(a)(1), the allegations in plaintiff's complaint are accepted as true, constructed liberally and given every favorable inference (Arnav Industries, Retirement Trust v Brown, Raysman, Millstein Felder & Steiner, L.L.P., 96 N.Y.2d 300, 303 [2001], overruled on other grounds by Oakes v Patel, 20 N.Y.3d 633 [2013]; Hopkinson III v Redwing Construction Company, 301 A.D.2d 837, 837-838 [3d Dept 2003]; Fern v International Business Machines Corporation, 204 A.D.2d 907, 908-909 [3d Dept 1994]).
Affidavits are not documentary evidence for the purpose of establishing relief under CPLR § 3211(a)(1) .
On a motion to dismiss a complaint pursuant to CPLR § 3211(a)(7), on grounds that the complaint fails to state a cause of action, all allegations in the complaint are deemed to be true (Sokoloff v Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414 [2001]; Cron v Hargro Fabrics, 91 N.Y.2d 362, 366 [1998]). All reasonable inferences which can be drawn from the complaint and the allegations therein stated shall be resolved in favor of the plaintiff (Cron at 366). In opposition to such a motion a plaintiff may submit affidavits to remedy defects in the complaint (id.). If an affidavit is submitted for that purpose, it shall be given its most favorable intendment (id.). The court's role when analyzing the complaint in the context of a motion to dismiss is to determine whether the facts as alleged fit within any cognizable legal theory (Sokoloff v Harriman Estates Development Corp., 96 N.Y.2d 409, 414 [2001]). In fact, the law mandates that the court's inquiry be not limited solely to deciding whether plaintiff has pled the cause of action intended, but instead, the court must determine whether the plaintiff has pled any cognizable cause of action (Leon v Martinez, 84 N.Y.2d 83, 88 [1994] ["(T)he criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one."]). However, "when evidentiary material [in support of dismissal] is considered the criterion is whether the proponent of the pleading has a cause of action not whether he has stated one" (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977] [emphasis added).
Significantly, documentary evidence means judicial records, judgments, orders, contracts, deeds, wills, mortgages and "a paper whose content is essentially undeniable and which, assuming the verity of its contents and the validity of its execution, will itself support the ground upon which the motion is based" (Webster Estate of Webster v State of New York, 2003 WL 728780, at *1 [Ct Cl Jan. 30, 2003]). Accordingly, much like on a motion seeking dismissal pursuant to CPLR § 3211(a)(1), where affidavits and deposition transcripts are not documentary evidence sufficient to establish a right to dismissal (Fleming at 781; Berger at 347) "affidavits submitted by a defendant [in support of a motion pursuant to CPLR § 3211(a)(7)] will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that the plaintiff has no cause of action" (Sokol v Leader, 74 A.D.3d 1180, 1182 [2d Dept 2010] [internal quotation marks omitted and emphasis added]; see Rovello v Orofino Realty Co., Inc., 40 N.Y.2d 633, 636 [1976] ["affidavits submitted by the defendant will seldom if ever warrant the relief he seeks unless too the affidavits establish conclusively that plaintiff has no cause of action."]; Matter of Lawrence v Miller, 11 N.Y.3d 588, 595 [2008]).
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