El-Nahal v. FA Mgmt., Inc.

• Decision Date: 04 March 2015
• Docket Number: 2013-04217
• Citation: 2015 N.Y. Slip Op. 01778,126 A.D.3d 667,5 N.Y.S.3d 201
• Parties: Hassan EL–NAHAL, etc., appellant, v. FA MANAGEMENT, INC., respondent.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 667

5 N.Y.S.3d 201

2015 N.Y. Slip Op. 01778

Hassan EL–NAHAL, etc., appellant

v.FA MANAGEMENT, INC., respondent.

2013-04217

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

March 4, 2015.

Milberg LLP, New York, N.Y. (Barry A. Weprin and Joseph Birton Reynolds of counsel), and Daniel L. Ackman, New York, N.Y, for appellant (one brief filed).

Emery Celli Brinckerhoff & Abady LLP, New York, N.Y. (Richard D. Emery, O. Andrew F. Wilson, and Elizabeth S. Saylor of counsel), for respondents.

REINALDO E. RIVERA, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and COLLEEN D. DUFFY, JJ.

Opinion

In an action to recover damages for breach of contract, unjust enrichment, and violation of the Rules of the New York City Taxi and Limousine Commission, the plaintiff appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated March 11, 2013, which granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(7).

ORDERED that the order is affirmed, with costs.

In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the allegations in the complaint must be liberally construed in favor of the plaintiff and all the facts alleged must be accepted as true (see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Nagan Constr., Inc. v. Monsignor McClancy Mem. High Sch., 117 A.D.3d 1005, 1006, 986 N.Y.S.2d 532 ; Zellner v. Odyl, LLC, 117 A.D.3d 1040, 986 N.Y.S.2d 592 ). The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach (see Dee v. Rakower, 112 A.D.3d 204, 208–209, 976 N.Y.S.2d 470 ; Elisa Dreier Reporting Corp. v. Global NAPs Networks, Inc., 84 A.D.3d 122, 127, 921 N.Y.S.2d 329 ).

The complaint alleged that the plaintiff entered into an oral contract with the defendant to lease a medallion from it for $666 per week, and that the defendant breached the contract by later “extracting” fees from the plaintiff of $852 per week and imposing a 5% charge for all credit card transactions. Since the plaintiff paid the allegedly excessive fees, the plaintiff was, in effect, describing an oral modification of the original contract, which was fully performed (see Martin v. Peyton, 246 N.Y. 213, 218, 158 N.E. 77 ; J & R Landscaping v. Damianos, 1 A.D.3d 563, 564, 769 N.Y.S.2d 52 )—not a breach of the original contract. Accordingly, the plaintiff failed to state a cause of action sounding in breach of contract.

Where the existence of a contract is in dispute, the plaintiff may allege a cause of action to recover for unjust enrichment as an alternative to a cause of action alleging breach of contract (see CPLR 3014 ; Thompson Bros. Pile Corp. v. Rosenblum, 121 A.D.3d 672, 674, 993 N.Y.S.2d 353 ). However, in the instant case, the plaintiff's allegations establish that there was a contract, which was fully performed. Full performance of the contract does not constitute...