| Halliwell v Gordon |
| 2009 NY Slip Op 03481 [61 AD3d 932] |
| April 28, 2009 |
| Appellate Division, Second Department |
| Eli Halliwell, Appellant, v Michael Gordon,Respondent. |
—[*1] Friedman Kaplan Seiler & Adelman, LLP, New York, N.Y. (Lance J. Gotko of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals froman order of the Supreme Court, Westchester County (Rudolph, J.), entered January 16, 2008,which granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) or,alternatively, to dismiss the complaint, with prejudice, pursuant to CPLR 3211 (a) (10), forfailure to join a necessary party.
Ordered that the order is modified, on the law, (1) by deleting the provisions thereof grantingthose branches of the defendant's motion which were to dismiss the first, third, and seventhcauses of action and substituting therefor provisions denying those branches of the motion, and(2) by deleting the provision thereof granting that branch of the defendant's motion which was todismiss the complaint, with prejudice, pursuant to CPLR 3211 (a) (10), for failure to join anecessary party, and substituting therefor a provision denying that branch of the motion; as somodified, the order is affirmed, without costs or disbursements.
On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must afford the pleadings aliberal construction, accept the allegations of the complaint as true, and provide the plaintiff thebenefit of every possible favorable inference (see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5NY3d 582, 591 [2005]; Leon v Martinez, 84 NY2d 83, 87 [1994]). Doing so here,the Supreme Court correctly granted those branches of the defendant's motion which were todismiss the second, fourth, fifth, and sixth causes of action, but erred in granting those branchesof the [*2]motion which were to dismiss the first, third, andseventh causes of action.
The consideration necessary to support a contract claim can consist of either a benefit to thepromisor or a detriment to the promisee (see Beitner v Becker, 34 AD3d 406, 407 [2006]; Anand v Wilson, 32 AD3d 808,809 [2006]). Here, the complaint alleges, among other things, that the plaintiff refrained fromleaving his employment with the nonparty Bumble and Bumble (hereinafter Bumble) based uponthe defendant's agreement to pay him substantial remuneration upon the sale of the defendant'sinterest in that entity. Since forbearance to do an act that a person has a legal right to doconstitutes consideration (see Hamer v Sidway, 124 NY 538, 545-546 [1891]; Rogowsky v McGarry, 55 AD3d815 [2008]) and the plaintiff, as an at-will employee of Bumble, had a legal right to leavehis employment with Bumble at any time (see Gill v Pathmark Stores, 237 AD2d 563,564 [1997]; Buffolino v Long Is. Sav. Bank, 126 AD2d 508, 509 [1987]), the complaintalleges the necessary element of consideration (see Kaplan v Aspen Knolls Corp., 290 FSupp 2d 335, 338 [2003]). Thus, the defendant was not entitled to dismissal of the first cause ofaction, alleging breach of contract, for failure to allege consideration.
The defendant also was not entitled to dismissal of the third cause of action, alleging unjustenrichment, and seventh cause of action, in quantum meruit. Where, as here, there is a bona fidedispute as to the existence of a contract, a plaintiff may proceed alternatively uponquasi-contractual theories (seeHochman v LaRea, 14 AD3d 653, 654-655 [2005]; Zuccarini v Ziff-Davis Media,306 AD2d 404, 405 [2003]).
However, the defendant was entitled to dismissal of the second and fourth causes of action,alleging misrepresentation and fraudulent inducement, respectively, the fifth cause of action,based upon promissory estoppel, and the sixth cause of action, seeking the imposition of aconstructive trust. The second cause of action failed to plead any facts alleging the existence of"special or privity-like relationship imposing a duty on the defendant to impart correctinformation to the plaintiff," as is required with respect to such a claim (J.A.O. Acquisition Corp. v Stavitsky,8 NY3d 144, 148 [2007]). A cause of action to recover damages for fraud does not liewhere the only fraud claimed relates to an alleged breach of contract (see Gibraltar Mgt. Co., Inc. v GrandEntrance Gates, Ltd., 46 AD3d 747, 749 [2007]; Page v Muze, Inc., 270 AD2d401 [2000]). Here, the fraud claims not only arose out of the identical circumstances as the causeof action alleging breach of contract, but were based upon identical allegations in the complaint(see Morgan v Smith Corp., 265 AD2d 536 [1999]; Purnavel v Tel-A-Car of N.Y.,204 AD2d 297 [1994]). Recovery under the doctrine of promissory estoppel is limited tocases where the promisee suffered unconscionable injury (see Dunn v B&H Assoc., 295AD2d 396, 397 [2002]; Gary Powell, Inc. v Mendel/Borg Group, 237 AD2d 407, 408[1997]; D & N Boening v Kirsch Beverages, 99 AD2d 522, 523-524 [1984], affd63 NY2d 449 [1984]). The plaintiff failed to allege such injury here. The sixth cause ofaction, seeking the imposition of a constructive trust, failed to allege a transfer of funds inreliance on the defendant's alleged promise, which is a necessary element of such a claim (see Williams v Eason, 49 AD3d866, 868 [2008]).
The plaintiff's remaining contentions regarding the sufficiency of the complaint are withoutmerit.
Finally, the Supreme Court erred in granting that branch of the defendant's motion whichwas to dismiss the complaint, with prejudice, on the alternative ground that the plaintiff failed tojoin Bumble as a necessary party. The defendant failed to demonstrate that Bumble needed to bea party if complete relief was to be accorded between the parties or that Bumble would beinequitably affected by a judgment in this action if it were not joined (see CPLR 1001[a]; Spector v Toys "R" [*3]Us, Inc., 12 AD3d 358, 359 [2004]). Rivera, J.P.,Spolzino, Angiolillo and Balkin, JJ., concur.