Kaur v. Lema

• Decision Date: 14 October 2020
• Docket Number: Index No. 53067/17,2018–12946
• Citation: 133 N.Y.S.3d 585,187 A.D.3d 870
• Parties: Surjeet KAUR, et al., Appellants, v. Jose LEMA, etc., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

187 A.D.3d 870

133 N.Y.S.3d 585

Surjeet KAUR, et al., Appellants,

v.Jose LEMA, etc., et al., Respondents.

2018–12946

Index No. 53067/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—May 15, 2020

October 14, 2020

Michael V. Caruso, P.C., Brewster, NY, for appellants.

Schwab & Gasparini PLLC, White Plains, N.Y. (Louis U. Gasparini of counsel), for respondents.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiffs appeal from an order of the Supreme Court, Dutchess County (James D. Pagones, J.), dated October 23, 2018. The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint and denied the plaintiffs' cross motion for leave to amend the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiffs, Surjeet Kaur and Tejpal Sandhu, are business partners. The defendant Jose Lema is a principal of the defendants LMP Realty, LLC (hereinafter LMP Realty), 3455 Route 9 Properties, Inc., Lema–Bedoya Import & Export Corp., and 8 Grandchildren, Inc. Based upon Lema's alleged misrepresentations as to profitability and value, Kaur agreed, through a series of contracts entered on behalf of the plaintiffs, to purchase: (1) an automotive and scrap metal business in Cold Spring (hereinafter the junkyard business), (2) the real property on which the junkyard business is located (hereinafter the junkyard property), and (3) Lema's membership units in LMP Realty, which holds title to real property located in Wappingers Falls (hereinafter the Route 9D property). The total purchase price was $2,600,000, and the plaintiffs tendered down payments totaling $625,000 to Lema.

The subject contracts allowed Kaur as the purchaser to take possession of the junkyard property and the Route 9D property prior to closing. However, after the plaintiffs took possession of the properties, they found that the junkyard business was not as profitable or operable as Lema had allegedly represented in their preliminary discussions and that the residential dwelling on the Route 9D property did not have a certificate of occupancy. Based on the foregoing, the plaintiffs advised the defendants of their intention to cancel the contracts and demanded the return of the down payments totaling $625,000, which the defendants refused.

The plaintiffs commenced this action against the defendants, seeking, among other things, damages for breach of contract and fraud. In lieu of answering, the defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. The plaintiffs opposed the motion and cross-moved for leave to amend the complaint. In an order dated October 23, 2018, the Supreme Court granted the defendants' motion and denied the plaintiffs' cross motion. The plaintiffs appeal.

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the movants utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law (see Fox Paine & Co., LLC v. Houston Cas. Co., 153 A.D.3d 673, 677, 60 N.Y.S.3d 294, citing Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ).

" ‘[O]n a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ " ( Doe v. Ascend Charter Schs., 181 A.D.3d 648, 648, 121 N.Y.S.3d 285, quoting Shah v. Exxis, Inc., 138 A.D.3d 970, 971, 31 N.Y.S.3d 512 ; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d at 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ). " ‘A court is ... permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) ’ " ( Doe v. Ascend Charter Schs., 181 A.D.3d at 650, 121 N.Y.S.3d 285, quoting Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153 ). Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 274–275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ).

Here, nowhere in the complaint or in Sandhu's affidavit submitted in opposition to the defendants' motion did the plaintiffs identify which contractual provisions ...