Shah v. Exxis, Inc.

• Decision Date: 20 April 2016
• Docket Number: 2014-03300, Index No. 4581/13.
• Citation: Shah v. Exxis, Inc., 2016 NY Slip Op 2981, 138 A.D.3d 970, 31 N.Y.S.3d 512 (N.Y. App. Div. 2016)
• Parties: Bipin SHAH, et al., appellants, v. EXXIS, INC., doing business as Taco Bell, et al., respondents.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 970

31 N.Y.S.3d 512

2016 N.Y. Slip Op. 02981

Bipin SHAH, et al., appellants,

v.EXXIS, INC., doing business as Taco Bell, et al., respondents.

2014-03300, Index No. 4581/13.

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

April 20, 2016.

Moritt, Hock & Hamroff, LLP, Garden City, N.Y. (Alexander D. Widell of counsel), for appellants.

Mark L. Cortegiano, Middle Village, N.Y. (Peter D. Rosenberg and Gerard Misk of counsel), for respondents.

JOHN M. LEVENTHAL, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN, and SYLVIA O. HINDS–RADIX, JJ.

In an action, inter alia, to recover damages for breach of contract based on the failure to repay a loan, the plaintiffs appeal, as limited by their notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Driscoll, J.), dated January 13, 2014, as granted those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the causes of action alleging breach of contract and unjust enrichment insofar as asserted against the defendant Rajan Patiwana, individually, and to dismiss so much of the complaint as sought to recover a loan installment in the sum of $250,000.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss so much of the causes of action alleging breach of contract and unjust enrichment insofar as asserted against the defendant Rajan Patiwana, individually, as sought to recover a loan installment in the sum of $550,000, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs.

The complaint alleges that on or about January 20, 2006, the plaintiffs entered into an oral contract in which they agreed to loan the defendant Rajan Patiwana the sum of $800,000, plus interest at 12% per year, payable in two installments on demand. On January 20, 2006, the plaintiffs made the first loan installment by depositing the sum of $250,000 via wire transfer into the account of the defendant Exxis, Inc., doing business as Taco Bell (hereinafter Exxis, Inc.). The complaint further alleges that on or about August 16, 2007, the plaintiffs made the second loan installment in the sum of $550,000 via wire transfer into the account of Exxis, Inc. The complaint alleges that on January 1, 2012, the loan balance was still outstanding, and the plaintiffs demanded that the defendants repay the loan. Annexed to the complaint were certain of the plaintiffs' bank account statements indicating that the subject installment payments had been made to an account owned by Exxis, Inc.

In the order appealed from, the Supreme Court, inter alia, granted those branches of the defendants' motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against Patiwana, individually, and pursuant to CPLR 3211(a)(5) to dismiss so much of the complaint as sought to recover the initial $250,000 loan installment on statute of limitations grounds.

“To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law” (Gould v. Decolator, 121 A.D.3d 845, 847, 994 N.Y.S.2d 368 ; see 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 ; Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). On 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 (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 ; Leon v. Martinez, 84 N.Y.2d at 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). “In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims” (Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366, 670 N.Y.S.2d 973, 694 N.E.2d 56 [internal quotation marks omitted] ). “On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired. The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable” (Baptiste v. Harding–Marin, 88 A.D.3d 752, 753, 930 N.Y.S.2d 670 ).

Here, the Supreme Court properly granted that branch of the defendants' motion which was to dismiss so much of the complaint as sought to recover the sum of $250,000, the alleged initial loan installment, pursuant to CPLR 3211(a)(5) on statute of limitations grounds. As the plaintiffs failed to allege in the complaint a specific time for repayment of the initial $250,000 installment, it was payable on demand, and their allegations based upon the failure to repay the initial installment accrued on January 20, 2006, the date those funds were advanced (see UCC 3–108 ; Vitale v. Giaimo, 103 A.D.3d 835, 838, 960 N.Y.S.2d 161 ; Seattle Pac. Indus., Inc. v. Golden Val. Realty Assoc., 54 A.D.3d 930, 931, 864 N.Y.S.2d 500 ; Cognetta v. Valencia Devs., Inc., 8 A.D.3d 318, 319, 778 N.Y.S.2d 80 ). Thus, pursuant to CPLR 213(2), the plaintiffs had six years within which to commence an action to recover the initial $250,000 installment (see Vitale v. Giaimo, 103 A.D.3d at 838, 960 N.Y.S.2d 161 ; Seattle Pac....