Opinion
Index No. CV-001189-23/NY
02-02-2024
Armstrong, Plaintiff, v. C&C Apartment Mgmt, Defendant.
pro se Plaintiff Defendant's counsel: Ccullen & Associates PC
Unpublished Opinion
pro se Plaintiff
Defendant's counsel: Ccullen & Associates PC
Wendy Changyong Li, J.
I. Recitation of the papers considered in the review of this Motion as required by CPLR 2219 (a)
Upon reading Defendant's Motion to dismiss (" Motion "), Plaintiff's Opposition ("Opposition"), together with all supporting documents, Defendant's Motion, is decided as follows.
II. Procedural History
Plaintiff commenced the instant action by filing an application for a Summons with an Endorsed Complaint (" Summons and Complaint ") with the Clerk of this Court on February 6, 2023. Plaintiff alleged failure to provide proper service, repairs and breach of lease, and breach of contract and sought $48,500. On March 1, 2023, Plaintiff filed a request for an Inquest. An Inquest was scheduled for March 31, 2023. On March 13, 2023, Defendant C&C APARTMENT MGMT. interposed an Answer (" Answer "). This matter was adjourned to June 23, 2023. On June 22, 2023, Defendant filed the instant Motion to dismiss. Both parties appeared on June 23, 2023, and the matter was adjourned to September 8, 2023. Plaintiff filed his pro se Opposition to Defendant's Motion on July 19, 2023.
III. Discussion
Defendant moved pursuant to CPLR 3211 (a) (7) and (a) (10) to dismiss Plaintiff's complaint contending that Plaintiff's complaint failed to state a cause of action and that Plaintiff failed to name a necessary party. Plaintiff timely filed a pro se Opposition to Defendant's motion two days before the Motion's return date (see CPLR 2214 [b]) and served a copy of the same upon Defendant's counsel. Plaintiff annexed properly executed proof of service to his Opposition (see CPLR 306). Although Plaintiff violated the CPLR 2103 (a) prohibition on party service by serving his Opposition himself, service of papers by a party is mere irregularity and this Court may excuse such service defects (see Kandel v State Div. of Human Rights, 70 A.D.2d 817 [1st Dept 1979]). Considering that fact that Plaintiff timely filed and served his pro se Opposition, the considerable hurdles pro se litigants face when trying to navigate the rules of civil procedure and motion practice, this Court excuses this service irregularity.
On a motion to dismiss pursuant to CPLR 3211 the facts pleaded in the Complaint are presumed to be true and are accorded every favorable inference (Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]; see also Carnigila v Chicago Tribune-New York News Syndicate, Inc., 204 A.D.2d 233, [1st Dept 1994]). And pro se complaints should be construed liberally in favor of the pleader (Pezhman v City of New York, 29 A.D.3d 164, 168 [1st Dept 2006] quoting Rosen v Raum, 164 A.D.2d 809, 811 [1st Dept 1990]). However, allegations consisting of bare legal conclusions, or allegations that are either inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration (Landmark Ventures, Inc., v InSightec, Ltd., 179 A.D.3d 493, 943 [1st Dept 2020]; see also Carniglia, 204 A.D.2d at 233-234; Summit Solomon & Feldesman v Lacher, 212 A.D.2d 5 [1st Dept 1995]). "When documentary evidence is submitted by a defendant the standard [changes] from whether the plaintiff has stated a cause of action to whether it has one" (Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc., 115 A.D.3d 128, 135 [1st Dept 2014] [internal quotation marks and citations omitted]).
In the instant case, Plaintiff, a pro se litigant, filed a Summons with Endorsed Complaint. An Endorsed Complaint is completed by the Clerk of this Court using information provided by the Plaintiff in an application for a summons (see New York City Civ Ct Act § 902 [a] [1]). Under the relaxed standards applicable to endorsed complaints, a plaintiff need only set forth the nature and substance of the cause of action (see Sound Blvd. Sound v Felix Storch, Inc., 167 Misc.2d 731, 732 [App Term, 1st Dept 1996]). Here, the Plaintiff's complaint cleared that low bar and apprised the Defendant of sustenance and nature of his claim, namely that Defendant breached the terms a residential lease by failing to repair Plaintiff's apartment. However, Defendant provided this Court with documentary evidence, namely the lease, so the question that must now be answered is whether the Plaintiff has a cause of action against the Defendant (Basis Yield Alpha Fund [Master], 115 A.D.3d at 135). The residential lease identifies Armstrong and West 116th ST Associates I, LLC as the parties to the lease. In other words, C&C APARTMENT MGMT was not a party to the agreement. Privity between a plaintiff and the defendant is required to sustain a breach of contract claim (Tutor Perini Building Corp. v Port Authority of New York and New Jersey, 191 A.D.3d 569 [1st Dept 2021] citing Seaver v Ransom, 224 NY 233, 233 [1918]). Plaintiff's cause of action for breach of contract fails because there was no contractual relationship between the parties to this litigation. The Plaintiff's complaint is dismissed pursuant to CPLR 3121 (a) (7). Given the foregoing, this Court need not address the Defendant's remaining contentions.
IV. Order.
Accordingly, it is
ORDERED that Defendant's Motion to dismiss Plaintiff's Complaint is GRANTED; and it is further
ORDERED that Plaintiff's Complaint is DISMISSED.
This constitutes the DECISION and ORDER of the Court.