Opinion
2731/10.
Decided March 21, 2011.
Jay Viders, Esq., Law Office of Jay R. Viders, PLLC, Commack, New York, Attorney for Plaintiffs.
Peter Kessler, Esq., Spector, Gadon Rosen, P.C., Philadelphia, PA, Attorney for Defendants.
David Tobias, Esq., Tobias Law Firm, P.C., New York, NY, Local Counsel.
In this action brought by plaintiffs Terra CRG, LLC ("Terra"), Ofer Cohen, Reuven Kahane and Daniel "Mickey" Taillard against defendants Namik Marke, 240/242 Franklin Avenue, LLC ("Franklin"), Colonial Court Apartments, LLC ("Colonial"), Howard Matheson and Steven Matheson d/b/a/ the Grand Marketplace, alleging, inter alia, breach of contract, unjust enrichment and tortious interference with contract, defendants move to dismiss the amended complaint, pursuant to CPLR 3211 (a) (7), or, in the alternative, defendants move to dismiss the first, fourth, fifth and eighth causes of action, pursuant to CPLR 3024.
BACKGROUND
This action arises out of a brokerage agreement for the sale of commercial real property serving as the site of a large indoor flea market named the Grand Marketplace, located at 4340 Route 130 North, Willingboro, New Jersey (the "Property"), and represents the second lawsuit arising out of the same series of transactions. The prior action was commenced under index No. 116179/08 in New York County by plaintiffs Terra, Kahane, and H. Stephen Kirschner, a real estate broker licensed in New York, against the same defendants in the instant action ( see Terra CRG, LLC v Marke, Sup Ct, New York County, Aug. 27, 2009, Gammerman, J., index No. 116179/08). The instant action was commenced by filing a summons and complaint on February 1, 2010. Defendants subsequently moved to dismiss the complaint, pursuant to CPLR 3211 (a) (7), which this court granted in part and denied in part on October 19, 2010 ( see Terra CRG LLC v Marke, 29 Misc 3d 1212[A] [Sup Ct, King County 2010]). Specifically, this court determined that the quantum meruit causes of action survived the motion to dismiss but dismissed the breach of contract, tortious interference with contract and punitive damages causes of action, and dismissed two other causes of action improperly pled with leave to replead.
According to the amended complaint, Franklin, a New York LLC with its place of business in Brooklyn, New York, is a 60% owner of the Property, and Colonial, a Delaware LLC with its place of business in Union County, New Jersey, is a 40% owner of the Property.
Both causes of action alleged that defendants "consciously and tortiously entered into a deliberate course of fraud and misrepresentation," "wrongfully conspired with one another" and that "defendants will have been unjustly enriched" unless plaintiff Terra is paid its commission fee and plaintiff Kahane is paid his consulting fee. This court dismissed the causes of action as they "attempt to state multiple separate causes of action, alleging, inter alia, "fraud," "conspiracy" and "unjust enrichment" in a confusing manner, in contravention of CPLR 3014, which provides that "separate causes of action or defenses shall be separately stated and numbered'" ( see Terra CRG LLC v Marke, 29 Misc 3d 1212[A] at *6 [Sup Ct, King County 2010]). This court also found that the two causes of action did not comport with CPLR 3013 as they did not sufficiently give defendants notice of "the material elements of each cause of action" and defendants "cannot reasonably be required to frame a response to the complaint in its present state" ( Aetna Cas. Sur. Co. v Merchants Mut. Ins. Co., 84 AD2d 736).
The original complaint alleged that in 2007, Franklin, Colonial and Marke, the owner and managing member of the two LLCs (collectively, the "Owner Defendants") became interested in selling the property, and entered into an Exclusive Right To Sell Agreement (the "Brokerage Agreement"), dated April 1, 2008 but executed on May 13, 2008, with plaintiff Terra, a real estate brokerage licensed in New York and owned by plaintiff Cohen. Under the terms of the Brokerage Agreement, the Owner Defendants agreed to grant Terra the "exclusive right, as broker and as agent of [the Owner Defendants], to sell all or any portion of the Property." Paragraph 2 of the Brokerage Agreement required that the Owner Defendants pay Terra a commission equal to 2.5% of the purchase price of the Property, which would not be due "unless and until settlement ha[d] occurred, or the closing of escrow, or if there [was] no settlement or escrow, then upon recordation of the deed which convey[ed] title to the Property" (Ex. 3 to amended complaint).
The original complaint also alleged that upon entering into the Brokerage Agreement, Cohen contacted plaintiff Kahane as a potential purchaser, who in turn brought in plaintiff Taillard. Taillard, a South African national introduced Kahane to the defendant Mathesons, who owned a flea market in South Africa, as potential purchasers. According to the original complaint, Kahane agreed to act as a sales consultant for the Mathesons and obtained a letter from Marke, dated May 30, 2008, on letterhead bearing the name of Franklin and Colonial, which provided that the Owner Defendants would pay Kahane a $200,000 consulting fee in the event that the Mathesons purchased the Property (the "Consulting Fee Letter"). The plaintiffs claimed that, upon information and belief, the Mathesons bypassed the plaintiffs and communicated directly with the Owner Defendants about purchasing the Grand Marketplace. Plaintiffs claimed that the Mathesons ultimately purchased the Grand Marketplace by purchasing membership interests in Franklin and Colonial rather than purchasing the Property in order to "screw over" the brokers. Plaintiffs cited, as proof that the Mathesons now own the Property, the website of the Grand Marketplace, which lists Howard Matheson as the general manager, and email communications from the Mathesons acknowledging ownership of the Grand Marketplace.
This court dismissed plaintiffs' breach of contract claims for failing to adequately plead a breach of either the Consulting Fee Letter or the Brokerage Agreement by alleging the occurrence of one of the triggering events requiring the payment of a consulting fee or brokerage commission. Plaintiffs' tortious interference with contract claims were also dismissed on the grounds that, due to plaintiffs' inadequate breach of contract claims, they likewise could not sustain tortious interference causes of action.
Plaintiffs filed an amended complaint on November 23, 2010 and also moved, subsequent to its filing, to renew and reargue defendants' prior motion to dismiss, which was decided on October 19, 2010. Defendants moved to dismiss the amended complaint, pursuant to CPLR 3211 (a) (7) and, in the alternative, to dismiss the first, fourth, fifth, and eighth causes of action of the amended complaint, pursuant to CPLR 3024, as "scandalous and impertinent." On January 19, 2011, this court denied plaintiffs' motion to renew and reargue and reserved decision on defendants' motion to dismiss the amended complaint addressed herein.
The amended complaint alleges many of the same facts contained in the original complaint, but now alleges that, in spite of the defendants' representations to the contrary, a secret settlement or closing of escrow did take place where the Mathesons effectively purchased the Property from the Owner Defendants, on September 1, 2008, for $25,000,0000. The complaint now also references paragraph 1 of the Brokerage Agreement, which states "[d]uring the terms of this Agreement Owner agrees to refer to [Terra] all inquiries, proposals and offers received by Owner regarding the Property, including, but not limited to, those from principals and other brokers, and Owner agrees to conduct all negotiations with respect to the sale, net leasing or other disposition of the Property solely and exclusively through [Terra] and to advise all persons of this exclusive right Agreement" (Ex. 3 to the amended complaint).
The amended complaint contains eight causes of action. The first cause of action alleges that the Owner Defendants breached the Brokerage Agreement by failing to pay Terra its commission and "by negotiating directly and clandestinely with defendants MATHESONS and by failing to refer to [TERRA] all inquiries, proposals and offers received by OWNER regarding the Property . . .' as required in paragraph "1" of the [Brokerage Agreement]" (amended complaint ¶ 48). The second cause of action alleges the same quantum meruit claim contained in the original complaint on behalf of Terra. The third cause of action alleges that the Owner Defendants have been unjustly enriched by their failure to adequately compensate Terra for its services. The fourth cause of action alleges tortious interference with contract against the Mathesons who "knew of the existence of [the Brokerage Agreement]" (amended complaint ¶ 60) and "entered into clandestine negotiations with the [Owner Defendants] with the intent of procuring [their] breach of the [Brokerage] Agreement with TERRA in order to save the $625,000 commission to which TERRA was rightfully entitled" (amended complaint ¶ 61). The fifth cause of action alleges that the Mathesons breached the Consulting Fee Letter by failing to pay Kahane his consulting fee. The sixth cause of action alleges that the Mathesons have been unjustly enriched by their refusal to adequately compensate Kahane for his services. The seventh cause of action alleges the same quantum meruit claim contained in the original complaint on behalf of Kahane and Taillard. The eighth cause of action alleges a tortious interference with contract claim against the Mathesons who "knew of the existence of [the Consulting Fee Letter]" (amended complaint ¶ 78) and "entered into clandestine negotiations with the [Owner Defendants] with the intent of procuring [their] breach of the [Brokerage] Agreement with KAHANE in order to save the $200,000 consulting fee to which KAHANE was rightfully entitled" (amended complaint ¶ 79).
ANALYSIS
Defendants have moved, pursuant to CPLR 3211 (a) (7), to dismiss the amended complaint for failure to state a cause of action. As set forth in the October 19, 2010 order, when evaluating a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must construe the pleading liberally, "accepting all the facts alleged in the complaint to be true and according the plaintiff the benefit of every possible favorable inference" ( Jacobs v Macy's East, Inc., 262 AD2d 607, 608 [2d Dept 1999]; Leon v Martinez, 84 NY2d 83). The court will deny the motion "if from the pleadings' four corners, factual allegations are discerned which taken together manifest any cause of action cognizable at law" ( 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [internal quotation marks omitted]). "The test on a motion to dismiss for insufficiency of the pleadings is not whether the plaintiff has artfully drafted the complaint but whether, deeming the complaint to allege whatever can be reasonably implied from its statements, a cause of action can be sustained" ( Pepler v Coyne , 33 AD3d 434 , 435 [1st Dept 2006], citing Stendig, Inc. v Thom Rock Realty Co., 163 AD2d 46, 48, [1st Dept 1990]; see also Feinberg v Bache Halsey Stuart, 61 AD2d 135, 137-138, [1st Dept 1978]).
Defendants argue that plaintiffs have improperly repleaded the breach of contract and tortious interference with contract claims, previously dismissed by this court's October 19, 2010 order, as the first, fourth, fifth and eighth causes of action in the amended complaint. In response, plaintiffs contend that this court's prior dismissal of those claims was not on the merits, thus permitting the plaintiffs to replead the causes of action. Plaintiffs further contend that they have addressed the legal insufficiency of the prior pleading as the new breach of contract claims now allege that a triggering event in the form of a closing or a settlement of escrow took place, which entitles plaintiff Terra to its rightfully owed commission and Kahane to his consulting fee. Plaintiffs now also allege a breach of paragraph 1 of the Brokerage Contract. None of these allegations were previously included in the original complaint. Plaintiffs further contend that repleading their tortious interference with contract claims is proper as the claims were only dismissed from the original complaint due to the dismissal of the breach of contract claims.
As this court held in its October 19, 2010 order, "[a] dismissal based upon insufficient plead[ing]' is not on the merits" ( Terra at *2, quoting Viafax Corp. v Citicorp Leasing, Inc. , 54 AD3d 846 , 849 [2d Dept 2007]). Although plaintiffs were not explicitly granted leave to replead their breach of contract and tortious interference claims, the dismissal of their claims was based upon their legal insufficiency and was therefore not on the merits. It is noted that, when leave to replead is not explicitly granted, plaintiffs may move to replead pursuant to CPLR 3211 [e] ( see generally Janssen v Inc. Vil. of Rockville Ctr. , 59 AD3d 15 [2 Dept 2008]), but CPLR 3025 [b] does permit a party to amend its pleading "at any time by leave of court . . [which] shall be freely given upon such terms as may be just." Although plaintiffs have not moved for leave to amend the complaint or replead previously dismissed causes of action, this court had already granted plaintiffs leave to replead their unjust enrichment claims, and defendants were anticipating plaintiffs' filing of an amended complaint. Upon review of the amended complaint, as defendants have not claimed that they would suffer surprise or prejudice at this early stage in the litigation from interposing the breach of contract and tortious interference claims, plaintiffs are sua sponte granted leave nunc pro tunc to include such claims in their amended complaint, as they have corrected the inadequacy of the prior claims, and the repleaded claims can now withstand a motion to dismiss pursuant to CPLR 3211 (a) (7) ( see Lucido v Mancuso , 49 AD3d 220 , 225 [2d Dept 2008]).
Plaintiffs now plead, in the amended complaint's first cause of action, that the Property was purchased and that one of the triggering events cited in paragraph 2 of the Brokerage Agreement, either a "settlement" or "the closing of escrow," have occurred, which entitles plaintiffs to the payment of its commission. Plaintiffs also plead that the Owner Defendants have breached paragraph 1 of the Brokerage Agreement, which requires that the Owner Defendants refer to Terra "all inquiries, proposals and offers" received by them. As for the Consulting Fee Letter, plaintiffs now plead, in the fifth cause of action, that the Property was purchased and a closing took place, which entitles Kahane to his consulting fee under the terms of the Consulting Fee Letter. In contrast to the previously dismissed breach of contract claims, these new factual allegations now specify how the agreements were breached and are adequate to sustain a breach of contract claim against the Owner Defendants ( see Furia v Furia, 116 AD2d 694 [2d Dept 1986]). Moreover, now that the plaintiffs have adequately alleged that a breach of the Brokerage Agreement and of the Consulting Fee Letter have occurred, they are now also permitted to bring their tortious interference with contract claims ( see Is. Rehabilitative Serv. Corp. v Maimonides Med. Ctr., 10 Misc 3d 1108(A), 2008 WL 786507 at *8 [Sup Ct, Kings County 2008]; see also Foster v Churchill, 87 NY2d 744, 749-750; Lama Holding Co. v Smith Barney Inc., 88 NY2d 413).
Defendants further argue that plaintiffs' claims are precluded by new factual allegations contained in the amended complaint establishing that the bulk of the brokerage services took place in New Jersey and require the application of New Jersey law, which bars unlicensed brokers from recovering commissions for brokerage services performed there. It is noted that this argument only applies to the claims seeking recovery under the Brokerage Agreement and not to the Consulting Fee Letter, which explicitly states that it is not a brokerage agreement. Moreover, plaintiffs correctly point out that the factual allegations defendants cite as new to the amended complaint were indeed present in the original complaint and were considered by this court when it previously determined that it was "unable to resolve the choice of law question at this time as it lacks sufficient evidence to adequately apply the center of gravity' or grouping of contacts' principles" ( see Terra CRG LLC at *4). Therefore, there is no basis at this time to make a determination as to choice of law requiring the dismissal of Terra's Brokerage Agreement claims.
In the alternative, defendants move to dismiss the first, fourth, fifth and eighth causes of action as scandalous and prejudicial pursuant to CPLR 3024 (b). "A motion to strike scandalous or prejudicial material from a pleading will be denied if the allegations are relevant to a cause of action" ( New York City Health and Hosp. Corp. v St. Barnabas Community , 22 AD3d 391 [1st Dept 2005]; see Bristol Harbour Assoc. v. Home Ins. Co., 244 AD2d 885, 886 [4th Dept 1997]). Because these new allegations are integral to viable breach of contract and tortious interference claims, which were not previously dismissed with prejudice, defendants' motion pursuant to CPLR 3024 (b) must be denied. Moreover, apart from claiming that the repleading of previously dismissed causes of action is improper, defendants have failed to explain how any of the facts alleged in the amended complaint are scandalous and prejudicial.
CONCLUSION
For the reasons stated herein, defendants' motion to dismiss pursuant to CPLR 3211 (a) (7) and CPLR 3024 (b) is denied.
This constitutes the decision, order and judgement of the court.