Opinion
Index No. 57082/2022 Motion Seq. Nos. 1 2
12-13-2022
ADVANCED DENTAL OF ARDSLEY, PLLC, Plaintiff, v. THEODORE BROWN, Defendant.
Unpublished Opinion
To commence the 30-day statutory time for appeals as a matter of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.
DECISION AND ORDER
HON. DAVID S. ZUCKERMAN, ACTING JUSTICE OF THE SUPREME COURT.
The papers filed in NYSCEF as Documents numbered 5 through 25 were read in connection with these two motions. In motion sequence number 1, Defendant Theodore Brown moves for an Order dismissing the Verified Complaint on the grounds that the parties' Asset Purchase Agreement is unenforceable. In the alternative, Defendant moves, pursuant to CPLR 3211(a) (1), (5) and (7), to dismiss each cause of action on the grounds of a defense founded upon documentary evidence, the causes of action may not be maintained because of the statute of limitations and that the pleading fails to state a cause of action. Plaintiff, Advanced Dental of Ardsley, PLLC, opposes Defendant's motion and, in motion sequence number 2, cross-moves, pursuant to CPLR 3025(b), for an Order granting it leave to amend its Verified Complaint. Defendant opposes the cross-motion.
FACTS AND PROCEDURAL HISTORY
On March 3, 2022, Plaintiff commenced this action by filing a Summons and Verified Complaint, The Complaint contains three causes of action: breach of contract, unjust enrichment and consequential damages. In essence, Plaintiff seeks to recover money damages based on Defendant's alleged breach of the parties' 2015 Asset Purchase Agreement ("the Agreement"). In the Agreement, Defendant, a dentist, agreed to purchase the assets of Plaintiff's dental practice for $250,000.00. Pursuant to paragraph 2(a) of the Agreement, the purchase price was to be paid as follows: $31,000.00 upon execution of the Agreement, $20,000.00 by April 15, 2015; the balance of $199,000.00 as follows: 15% of the revenue generated on a monthly basis and 10% of the revenue generated by specialists to whom Defendant was paying 50% of the production time until the $199,000.00 balance was paid in full.
Pursuant to paragraph 2(b) of the Agreement, in the event the practice was sold, Defendant was to pay Plaintiff 56% of the buyout, minus the monies already paid, not to exceed $250,000.00. Plaintiff alleges that Defendant made the initial $31,000 down payment and, on May 27, 2016, a last payment of $1,261.50; leaving a balance in excess of $199,000.00.
Plaintiff alleges that, sometime after June, 2018, Defendant sold the dental practice but did not remit payment as provided in paragraph 2(b) of the Agreement. On its breach of contract cause of action, Plaintiff alleges it sustained damages exceeding $500,000.00. On its unjust enrichment cause of action, Plaintiff alleges it has been damaged in an amount exceeding $250,000.00. On its consequential damages cause of action, Plaintiff alleges Defendant intentionally and wilfully breached the Agreement likewise causing it to sustain damages exceeding $250,000.00.
On May 22, 2022, Defendant moved pre-Answer to dismiss the original Complaint. On August 3, 2022, while Defendant's motion to dismiss was pending, Plaintiff cross-moved for leave to amend its Complaint and, on that same date, filed its proposed Amended Verified Complaint.
CONTENTIONS OF THE PARTIES
Defendant does not dispute that it entered into the Agreement with Plaintiff. Nonetheless, Defendant argues that the action must be dismissed because the Agreement is unenforceable. More specifically, Defendant contends that the Agreement's fee-splitting and "due on sale" clauses violate New York law and are contrary to public policy. Defendant further contends that Plaintiff's claims for recovery of percentages of revenues generated by referrals to Defendant and his services in his separate practice are likewise prohibited under the law.
Defendant also alleges that the six year statute of limitations for a breach of contract action and either three or six years for unjust enrichment have expired. In the alternative, Defendant asserts that he made full payment to Plaintiff, which he contends is a complete defense to this action.
Defendant argues that the Complaint fails to state a cause of action for breach of contract because the allegations are stated in conclusory fashion without factual support. Defendant specifically argues that the action must be dismissed for Plaintiff's failure to annex a copy of the Agreement to the Complaint. Defendant adds that Plaintiff's allegations of damages incurred for securing or borrowing funds or preparing to close are not actionable. Defendant further contends that the existence of a written agreement precludes the cause of action for unjust enrichment.
As to Plaintiff's consequential damages claim, Defendant alleges that New York does not recognize it as a cause of action. Defendant adds that, should Plaintiff intend this cause of action to be one seeking punitive damages, a separate claim for punitive damages is not recognized in New York.
Defendant further argues that it has submitted documentary-evidence which conclusively establishes a defense to Plaintiff's claims. These are: the Agreement, the list of Plaintiff's former patients who sought services from Defendant, the list of all payments made by Defendant to Plaintiff, the 2018 formal notice by Defendant's counsel to Plaintiff of the proposed sale of Defendant's dental practice with a certified mail receipt, and a payroll Journal showing a payment of $1,261.50 on May 27, 2016.
Plaintiff responds that there is no fee-splitting in the Agreement. Plaintiff characterizes the Agreement as providing for payment of monies owed on a schedule based on revenue generated as evidenced by Defendant not having to pay the balance of the purchase price all at once.
Plaintiff further contends it has properly pled all of its causes of action. Plaintiff adds that, in any event, it has filed an Amended Verified Complaint which further details its breach of contract claim. Plaintiff argues that Defendant's documentary submissions fail to establish that the total amount due under the Agreement, 56% of the revenue generated at the time Defendant sold his practice, was paid.
Plaintiff also contends that the applicable statute of limitations is six years not three (as alleged by Defendant) and that Plaintiff's "trigger" date for statute of limitations purposes is erroneous, as Defendant made its last payment in 2016, not in 2015 (as alleged by Defendant). Plaintiff also argues that it is entitled to plead both a breach of contract claim and an alternative cause of action for unjust enrichment. Plaintiff adds that it has properly pled damages, as Defendant made money acquiring Plaintiff's customer list without paying for that asset. Plaintiff asserts that it may recover general damages which are the natural and probable consequences of the breach as well as consequential damages which do not directly flow from the breach.
With respect to the cross-motion, Plaintiff contends that, pursuant to CPLR 3025(b), motions to amend are liberally granted absent prejudice to the opposing party. Plaintiff asserts that its proposed Amended Complaint merely expands the description of the rights and responsibilities of the parties as set forth in the Agreement and adds certain allegations not contained in the original Complaint.
In opposition, Defendant argues that the amendment sought by Plaintiff does no more than annex and reference the Agreement. Defendant points out that Plaintiff does not oppose Defendant's arguments supporting dismissal; the amendment is not substantive; and the proffered amendment does not moot the motion to dismiss as a matter of law. Defendant further contends that leave to amend should be denied as there are no new factual allegations and no new theories of recovery in the proposed Amended Complaint. In the alternative, if the court permits the amendment, Defendant elects to apply its motion to dismiss to the Amended Complaint which likewise would not survive a motion to dismiss.
DISCUSSION
1. Leave To Amend the Complaint
Pursuant to CPLR §3025(b),
[a] party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.
"As a general rule, 'leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party and the amendment is not patently lacking in merit..., and the decision whether to grant leave to amend a complaint is committed to the sound discretion of the court'" (Davis v. South Nassau Communities Hosp., 26 N.Y.3d 563, 580 [2015] citing Pink v Ricci, 100 A.D.3d 1446, 1448 [4th Dept 2012]). "To obtain leave, a plaintiff must submit evidentiary proof of the kind that would be admissible on a motion for summary judgment" (Velarde v. City of New York, 14 9 A.D.3d 457, 457 [1st Dept 2017]) . The party opposing the motion bears the burden of demonstrating prejudice or surprise, or that the proposed amendment is devoid of merit (Lennon v. 56th &Park (NY) Owner, LLC, 199 A.D.3d 64 [2d Dept 2021]) .
Pursuant to CPLR 3025(a).
(a) Amendments without leave. A party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it.
Pursuant to CPLR 3211 (f), Motion to dismiss:
Extension of time to plead. Service of a notice of motion under subdivision (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve the pleading until ten days after service of notice of entry of the order.
Since Defendant filed its motion to dismiss on May 22, 2022, pursuant to CPLR 3211 (f), its time to answer the Verified Complaint was extended "until ten days after service of notice of entry of the order" deciding its motion to dismiss. "Since the Court had not yet decided Defendant's motion at the time Plaintiff moved to amend its Verified Complaint, the plaintiff did not need to move pursuant to CPLR 3025(b); instead it could have amended as of right pursuant to CPLR 3025(a)" (see, Roam Capital, Inc. v Asia Alernatives Management LLC, 194 A.D.3d 585 (1st Dept. 2021 citing, Nimkoff Rosenfeld & Schecter, LLP v Flaherty, 71 A.D.3d 533 (1st Dept 2010) .
Thus, pursuant to CPLR 3025(a), on August 3, 2022, while Defendant's motion to dismiss was pending, Plaintiff filed its proposed Amended Complaint as of right. Accordingly, Plaintiff's cross-motion for leave to file an Amended Complaint is denied as moot.
"When an amended complaint has been served, it supercedes the original complaint and becomes the only complaint in the case" Seidler v Knopf, 186 A.D.3d 886 [2d Dept 2020], see also, 100 Hudson Tenants Corp v Laber, 98 A.D.2d 692 [1st Dept 1983]; Bankers Conseco Life Insurance Company, et al, v Egan Jones Ratings Company, 193 A.D.3d 539 [1st Dept 2021]). Accordingly, the original Complaint is disregarded, the Amended Complaint is Plaintiff's only pleading, and the action must proceed as though the original pleading had never been served (Halmar Distributors, Inc. v Approved Mfg. Corp, 49 A.D.2d 841 [1st Dept 1975]) . In light of the foregoing, the branch of Defendant's motion addressed to Plaintiff's original Complaint is rendered moot.
In the Second Department, filing an amended complaint does not render a motion to dismiss academic - the moving party has the option to apply the motion to the new pleading (Livadiotakis v Tzitzikalakas, 302 A.D.2d 369, 370 {2d Dept 2003] ["it has long been the rule in this Judicial Department that a motion to dismiss which is addressed to the merits may not be defeated by an amended pleading"]). Here, Defendant has elected to do so. Consequently, the court will apply Defendant's motion to dismiss to the Amended Complaint.
2. Dismissal Based Upon the Agreement
Defendant first seeks to dismiss the Amended Complaint on the grounds that the Agreement is illegal and unenforceable. Defendant argues that the Agreement constitutes an illegal fee-splitting arrangement.
Certainly, the words "fee splitting" do not appear in the document itself. Nonetheless, "[i]t is the settled law of this State (and probably of every other State) that a party to an illegal contract [in this case the plaintiff corporation] cannot ask a court of law to help him carry out his illegal object, nor can such a person plead, or prove in any court a case in which he, as a basis for his claim, must show forth his illegal purpose" (Stone v Freeman, 298 NY 268, 271 [1948]) . Thus, "the law will not extend its aid to either of the parties ... or listen to their complaints against each other, but will leave them where their own acts have placed them" (Braunstein v Jason Tarantella, Inc., 87 A.D.2d 203, 207 [2d Dept 1982]) .
Defendant does not argue that the Agreement is illegal because fees are split between a licensed medical professional and a layperson (see e.g., Bell v Bd. of Regents of Univ, of State of New York, 295 NY 101, 111 [1946]) . Rather, Defendant asserts that the Agreement provides for improper fee splitting between dentists. More specifically, Defendant argues that Plaintiff improperly "asserts claims for recovery of percentages of revenues generated from referrals to the dentist and his professional services in his own separate professional practice" (Memorandum of Law, p. 6).
New York State Education Law 6509-a prohibits splitting dental professional fees by non-affiliated professionals (Sachs v Saloshin, 138 A.D.2d 586 [2d Dept 1988]). In Hartman v Bell, 137 A.D.2d 585, 585-86 [2d Dept 1988], "the plaintiff, a physician, agreed to sell his professional medical practice to the defendants, who are also physicians who belong to a professional medical group. The agreement provided that the defendants were to pay the plaintiff 40% of the gross income from their practice of industrial medicine (the practice of medicine relating exclusively to workers' compensation, no-fault insurance and preemployment physicals) for a period of three years, and if that amount did not total $140,000, a $140,000 minimum payment. The contract further provided for the plaintiff to receive 20% of the gross receipts from the defendants' practice of industrial medicine for six months following the end of the three-year period." The court held that this "constituted a voluntary prospective arrangement for the splitting of fees in contravention of Education Law § 6509-a and State public policy and that the Supreme Court properly granted the respondents' motion for summary judgment. Nor is the plaintiff entitled to recover under the theory of unjust enrichment" (id) (internal citations omitted) .
Here, the Agreement provided for a specific purchase price. The "fee splitting" referenced by Defendant was merely a formulabased provision to schedule payment of the purchase price. Indeed, Plaintiff seeks recovery for Defendant's alleged failure to pay the balance of the purchase price. Accordingly, the court finds that Defendant has not established that the Agreement constitutes a fee splitting arrangement to entitle relief on a motion to dismiss. Therefore, this branch of Defendant's motion must be denied.
3. Dismissal Pursuant to 3211(a)(1)
Pursuant to CPLR §3211(a)(1)
[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that a defense is founded upon documentary evidence.
As the Court of Appeals has held, dismissal is warranted "if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 N.Y.2d 83, 88 [1994]; see Ellington v EM/ Music, Inc., 24 N.Y.3d 239 [2014]).
On a motion to dismiss pursuant to CPLR §3211 (a) (1), the defendant has the burden of showing that the relied-upon documentary evidence "resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim" (Scadura v Robillard, 256 A.D.2d 567, 567 [2d Dept 1998]) . The pleadings must be liberally construed, (Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc., 37 N.Y.3d 169, 175 [2021]), and the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, supra, at 87-88) . On the other hand, "the court is not required to accept factual allegations that are plainly contradicted by the documentary evidence or legal conclusions that are unsupportable based upon the undisputed facts" (Robinson v Robinson, 303 A.D.2d 234, 235 [1st Dept 2003])
For dismissal, the proffered documents must utterly refute the allegations in the complaint, "conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. Of NY, 98 N.Y.2d 314, 326 [2002]). In order for evidence to qualify as "documentary," it must be unambiguous, authentic, and "essentially undeniable" (Dixon v 105 W 75th St., LLC, 148 A.D.3d 623, 629 [1st Dept 2017], citing Fontanetta v John Doe 1, 73 A.D.3d 78 [2d Dept 2010]) .
"As Professor Siegel has noted in his commentary to CPLR 3211, there is 'a paucity of case law' as to what is considered 'documentary' under [CPLR 3211(a) (1)]' (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 21-22)" (Fontanetta v John Doe 1, supra, at 84). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case" (Id., at 84-85 [internal quotation marks omitted]). Other examples of documentary evidence include trust agreements (Matter of Casamassima v. Casamassima, 30 A.D.3d 596 [2d Dept 2006]) and a certified copy of an insurance policy (Minchala v 829 Jefferson, LLC, 177 A.D.3d 866 [2d Dept 2019]) . In contrast, "letters, emails, and affidavits fail to meet the requirements for documentary evidence" (25-01 Newkirk Ave., LLC v Everest Nat. Ins. Co., 127 A.D.3d 850, 851 [2d Dept 2015]). When "the parties dispute the authenticity of the purported documentary evidence," the motion must be denied. Yue Fun USA Enterprises, Inc. v Novelty Crystal Corp., 105 A.D.3d 840 [2d Dept 2013] [disputed lease] . "In sum, to be considered 'documentary,' evidence must be unambiguous and of undisputed authority" (Fontanetta v. John Doe 1, supra, at 86).
Here, Defendant submits the Agreement, the list of Plaintiff's former patients who sought services from Defendant, the list of all payments made by Defendant, Defendant's counsel's 2018 formal notice to Plaintiff of the proposed sale of Defendant's dental practice, with a certified mail receipt and a payroll journal showing a May 27, 2016 payment of $1,261.50. The court does not find that the evidence submitted by Defendant is "essentially undeniable." Nor does it conclusively refutes Plaintiff's allegations. Therefore, Defendant's motion to dismiss the Amended Complaint, pursuant to CPLR 3211(a)(1), must be denied.
4. Dismissal Pursuant to CPLR 3211 (a)(5)
"On a motion to dismiss a complaint pursuant to CPLR 3211(a) (5) on the ground that the complaint is barred by the applicable statute of limitations, the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired" (Barry v Cadman Towers, Inc., 136 A.D.3d 951, 952 [2d Dept 2016]; see Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 123 A.D.3d 901 [2d Dept 2 014]) . "The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the action was actually commenced within the applicable limitations period" {Griffin v Perrotti, 121 A.D.3d 1041, 1042 [2d Dept 2014]; see Zaborowski v Local 74, Serv. Empls. Inti. Union, AFL-CIO, 91 A.D.3d 768, 768-769 [2d Dept 2012]).
Here, Defendant contends Plaintiff's causes of action for breach of contract and unjust enrichment are time-barred. Although Defendant has met its prima facie burden, Plaintiff has raised an issue of fact as to whether Defendant's last payment was in 2015, as alleged by Defendant, or in 2016. Additionally, the documents submitted by Defendant in support of the allegations have only been verified by Defendant himself. Therefore, Defendant's motion to dismiss on the ground that Plaintiff has exceeded the statute of limitations must be denied.
5. Dismissal Pursuant to CPLR 3211(a)(7)
Pursuant to CPLR 3211(a)(7),
[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action.
It is well settled that
"In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the sole criterion is whether from the complaint's four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law In considering such a motion, the complaint is liberally construed, the facts as alleged in the complaint are accepted as true, and the party whose pleading is challenged must be afforded the benefit of every possible favorable inference"(Gale v Animal Med. Ctr., 108 A.D.3d 497, 498 [2d Dept 2013]) . [internal quotations and citations omitted]). "[T]he standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" (Sokol v Leader, 14 A.D.3d 1180, 1180-81 [2d Dept 2010]). Although the "court must accept the facts alleged in the complaint as true. . . . this does not apply to legal conclusions or factual claims which were either inherently incredible or flatly contradicted by documentary evidence" (Greene v Doral Conference Ctr. Assoc., 18 A.D.3d 429, 430 [2d Dept 2005]).
A. Breach of Contract
To plead a breach of contract claim, a party must allege (1) the existence of an agreement (2)performance of the agreement by one party (3) breach by th either party and (4) damages (American Express Bank, FCB v Scali, 142 A.D.3d 517, 517-518 [2d Dept 2016]). The court finds that Plaintiff has pled the required elements to establish its cause of action for breach of contract. Accordingly, Plaintiff's motion to dismiss this cause of action must be denied.
B. Unjust Enrichment
To recover for unjust enrichment, a party must allege (1) the defendant was enriched (2) at the Plaintiff's expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered" (Deerin v Ocean Rich Foods, LLC, 158 A.D.3d 603, 606 [2d Dept 2018] quoting, Travelers Enters., Inc. v Analog Analytics, Inc., 149 A.D.3d 1003, 1006 [2d Dept 2017]). Normally, in circumstances like these, the plaintiff must elect its remedy, Clark-Fitzpatrick, Inc. v Long Island R.R. Co., 70 N.Y.2d 382 [1987]), because "a party may not recover in quantum meruit or unjust enrichment where the parties have entered into a contract that governs the subject matter" (Cox v NAP Constr. Co., Inc., 10 N.Y.3d 592, 607; see Caputo v Citimortgage, Inc., 165 A.D.3d 748, 749 [2d Dept 2018]) . Cox and Caputo, however, involved dismissal after the court denied the defendant's summary judgment motion on a related contract claim. In contrast, where, as here, the court denies a motion, pursuant to CPLR 3211 (a) (7), to dismiss a breach of contract cause of action for failure to state a claim, the equitable claims should not automatically be dismissed (First Class Concrete Corp. v Rosenblum, 167 A.D.3d 989, 990 [2d Dept 2018]{"Since the defendants disputed the existence and enforceability of a contract covering the dispute at issue, the plaintiff was entitled to allege causes of action to recover for unjust enrichment and in quantum meruit as alternative theories of relief"]; compare Knox v Countrywide Home Loans, Inc., 205 A.D.3d 792 [2d Dept 2022] [summary judgment dismissing unjust enrichment counterclaim where the plaintiff granted summary judgment on breach of contract claim]).
An exception to the election of remedies rule applies where "there is a bona fide dispute as to the existence of a contract a plaintiff may proceed upon a theory of quasi-contract as well as breach of contract, and will not be required to elect his or her remedies" (Hochman v LaRea, 14 A.D.3d 653, 654-55 [2d Dept 2005]). Here, Defendant does not dispute the existence of the Agreement. Rather, Defendant asserts that it is unenforceable. The difference, between a dispute regarding the existence of a contract and whether it is enforceable, does not preclude applicability of the exception. In fact, unenforceability has been held to be an exception to the election of remedies rule (Gemma Power Sys., LLC v Exelon W. Medway II, LLC, 2019 WL 3162088, *5 [SDNY. July 1, 2019]["the limitation of pleading claims sounding in quasi contract does not apply when . . . the contract is not valid or enforceable"]). Thus, the court's ruling, denying Defendant's motion, pursuant to CPLR 3211 (a) (7), to dismiss the breach of contract claim, does not mandate dismissal of the unjust enrichment claim.
Moreover, the Agreement is silent as to relief, if any, in the event it is deemed unenforceable. Consequently, Plaintiff is not required to elect between the breach of contract and unjust enrichment causes of action (Joseph Sternberg, Inc. v Walber 36th St. Assocs., 187 A.D.2d 225 [2d Dept 1993]) . Therefore, Defendant's motion must be denied.
7. Consequential Damages
"In order to recover consequential damages, a plaintiff is required to plead that the damages were the natural and probable consequences of the breach, and were contemplated at the time the contract was executed" (Atkins v Ernst and Young, 301 AD 2d 547, 549 [2d Dept 2003]). Plaintiff's allegations in its Amended Complaint fail to establish that the claimed consequential damages were contemplated by the parties when the Agreement was executed. Therefore, Defendant's motion to dismiss the Third Cause of Action for consequential damages must be granted.
The remaining contentions do not compel a different result. Any additional relief requested by any party and not considered herein is denied.
Accordingly, it is hereby
ORDERED, that the cross-motion by Plaintiff Advanced Dental of Ardsley, PLLC, for an order, pursuant to CPLR 3025(b), granting it leave to amend its Verified Complaint is denied as leave of the court is not required; and it is further
ORDERED, that the motion by Defendant Theodore Brown to dismiss Plaintiff's original Complaint on the grounds that the parties' Agreement is unenforceable or, in the alternative, pursuant to CPLR 3211 (a)(1), (a)(5) and (a)(7), is denied as moot; and it is further
ORDERED, that the motion by Defendant Theodore Brown to dismiss Plaintiff's Amended Complaint on the grounds that the parties' Agreement is unenforceable or, in the alternative, pursuant to CPLR 3211(a) (1) and (a) (5), is denied; and it is further
ORDERED, that the motion by Defendant Theodore Brown, pursuant to CPLR 3211 (a) (7), to dismiss all causes of action in the Amended Complaint, is denied as to the First and Second Cause of Action for breach of contract and unjust enrichment and granted only as to the Third Cause of Action for consequential damages and the Third Cause of Action in the Amended Complaint is hereby dismissed.
The foregoing constitutes the Decision and Order of the Court.