| Woss, LLC v 218 Eckford, LLC |
| 2013 NY Slip Op 00327 [102 AD3d 860] |
| January 23, 2013 |
| Appellate Division, Second Department |
| Woss, LLC, Appellant, v 218 Eckford, LLC, et al.,Respondents. |
—[*1] Maria C. Bielesz, New York, N.Y. (David S. Fitzhenry of counsel), forrespondents.
In an action, inter alia, to recover damages for breach of contract, breach of fiduciaryduty, and unjust enrichment, the plaintiff appeals from an order of the Supreme Court,Kings County (Jacobson, J.), dated June 30, 2011, which granted the defendants' motionto dismiss the complaint pursuant to CPLR 3211 (a) (7).
Ordered that the order is affirmed, with costs.
On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure tostate a cause of action, the court must afford the complaint a liberal construction(see CPLR 3026), "accept the facts as alleged in the complaint as true, accordplaintiffs the benefit of every possible favorable inference, and determine only whetherthe facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84NY2d 83, 87-88 [1994]; seeNonnon v City of New York, 9 NY3d 825, 827 [2007]). In opposing a motionpursuant to CPLR 3211 (a) (7), a plaintiff may submit affidavits for "a limited purposeonly, . . . to remedy defects in the complaint" (Rovello v Orofino RealtyCo., 40 NY2d 633, 636 [1976]; see Sokol v Leader, 74 AD3d 1180, 1181 [2010]). Where adefendant has submitted evidentiary material in support of a motion to dismiss acomplaint pursuant to CPLR 3211 (a) (7) and the motion has not been converted to onefor summary judgment (cf. CPLR 3211 [c]), "the criterion is whether the[plaintiff] has a cause of action, not whether he [or she] has stated one, and, unless it hasbeen shown that a material fact as claimed by the [plaintiff] to be one is not a fact at alland unless it can be said that no significant dispute exists regarding it . . .dismissal should not eventuate" (Guggenheimer v Ginzburg, 43 NY2d 268, 275[1977]; see Sokol v Leader, 74 AD3d at 1182).
Here, the complaint alleged that, in 2006, the parties formed the defendant 218Eckford, LLC (hereinafter 218 Eckford), in which three entities had membershipinterests: the plaintiff, Woss, LLC, the defendant Bridge Group One, LLC (hereinafterBridge Group), and nonparty Xford Properties, LLC (hereinafter Xford). Appended tothe complaint and incorporated therein were three documents: (1) a "Limited LiabilityCompany Operating Agreement of 218 Eckford" dated September 26, 2006, which wassigned only by the defendant Kristopher Rostek (hereinafter the 2006 Agreement), (2) an"Escrow Agreement" dated February 9, 2007, signed by Rostek in his capacity asrepresentative of 218 Eckford, and by representatives of the plaintiff and Xford, and (3) a"Limited Liability Company Operating Agreement of 218 Eckford," dated "2007," [*2]signed by Rostek in his capacity as representative of BridgeGroup and by representatives of the plaintiff and Xford (hereinafter the 2007Agreement). The plaintiff alleged, inter alia, that the defendants had breached the 2006Agreement by issuing the 2007 Agreement with terms more favorable to the defendants.The complaint included eight causes of action, six of which were expressly premised onthe "2006 Agreement," and sought relief including damages for breach of the 2006Agreement and invalidation of the 2007 Agreement.
The defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (7),submitting evidentiary material including the same three documents appended to thecomplaint and a printout from the New York Department of State website establishingthat the plaintiff was formed as a limited liability company on January 26, 2007. Thedefendants contended that the documentary evidence established conclusively that theplaintiff did not exist in 2006 and was neither a party to nor an intended beneficiary ofthe 2006 Agreement, requiring dismissal of all causes of action premised on the "2006Agreement." The defendants also contended that the documentary evidence irrefutablyestablished that the plaintiff was a party to the 2007 Agreement and, therefore, it couldnot assert the quasi-contract theory of unjust enrichment under the sixth cause of action.Finally, the defendants contended that the seventh cause of action alleging breach offiduciary duty must be dismissed because the plaintiff failed to allege facts in support ofthe elements of a fiduciary relationship and damages.
In opposition, the plaintiff submitted, inter alia, an affidavit of one of its members,Iwona Weiss, in which she conceded, consistent with the documents, that the plaintiffwas not a party to the 2006 Agreement but was a party to the 2007 Agreement. Weiss setforth factual averments in support of a new contention that the defendants had breachedthe Escrow Agreement and the 2007 Agreement by depriving the plaintiff of its full shareof the profits in accordance with its membership interest in 218 Eckford. The SupremeCourt granted the defendants' motion to dismiss the complaint and the plaintiff appeals.
Here, the first through fifth and the eighth causes of action were predicated upon anallegation that the plaintiff was a party to the 2006 Agreement. The affidavit submittedby the plaintiff in opposition did not remedy a defect in pleading but advanced entirelynew causes of action premised on the 2007 Agreement without seeking leave to repleador amend the complaint (cf.Schenkman v New York Coll. of Health Professionals, 29 AD3d 671, 673[2006]). The defendants "indisputably" demonstrated "through evidentiary material" thatthe plaintiff's allegation that it was a party to the 2006 Agreement was "not a fact at all"(Baron v Galasso, 83 AD3d626, 628 [2011] [internal quotation marks omitted]; see Baumann v HanoverCommunity Bank, 100 AD3d 814, 816 [2012]). Accordingly, the SupremeCourt properly granted those branches of the defendants' motion which were to dismissthe first through fifth and the eighth causes of action.
The sixth cause of action sought damages for unjust enrichment. A cause of actionalleging unjust enrichment is a quasi-contract claim, and therefore, is not viable where, ashere, it is undisputed that the parties entered into an express agreement, the 2007Agreement (see Vescon Constr.,Inc. v Gerelli Ins. Agency, Inc., 97 AD3d 658 [2012]; Shovak v Long Is. CommercialBank, 50 AD3d 1118, 1120 [2008]). In addition, the plaintiff failed adequatelyto allege a fiduciary relationship in order to sustain the seventh cause of action to recoverdamages for breach of fiduciary duty (see Parekh v Cain, 96 AD3d 812, 816 [2012]).Accordingly, the Supreme Court properly granted those branches of the defendants'motion which were to dismiss the sixth and seventh causes of action.
The defendants' remaining contentions are without merit. Angiolillo, J.P., Dickerson,Miller and Hinds-Radix, JJ., concur.