Opinion
Index No. 652270/2023 Motion Seq. No. 001
01-11-2024
CAMP 1456, LLC Plaintiff, v. IMPALA RETAIL OWNER, LLC, Defendant.
Unpublished Opinion
MOTION DATE 08/04/2023.
PRESENT: HON. LYLE E. FRANK, Justice
DECISION + ORDER ON MOTION
LYLE E. FRANK, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22 were read on this motion to/for _DISMISS.
This action arises out of a commercial lease agreement. Defendant, landlord, now moves to dismiss the complaint, pursuant to CPLR §3211 (a)(1) and (a)(7), averring both that a defense is founded upon documentary evidence and the complaint fails to state a cause of action. Plaintiff opposes the instant motion and filed an amended complaint. The Court's ruling and analysis will be as to the amended complaint.
Background
The parties entered into a commercial lease agreement for the subject premises to be used "[a]s a first-class, sit-down restaurant with a bar, subject to compliance with all applicable Legal Requirements, and for no other purpose." See Lease, NYSCEF Doc. 7.
Plaintiff contends that after the lease was executed, but before it was in possession of the premises, it employed an architect to survey the location and it was determined that the premises is unable to be used a restaurant.
Legal Standard
It is well-settled that on a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the pleading is to be liberally construed, accepting all the facts as alleged in the pleading to be true and giving the plaintiff the benefit of every possible inference. See Avgush v Town of Yorktown, 303 A.D.2d 340 [2d Dept 2003]; Bernberg v Health Mgmt. Sys., 303 A.D.2d 348 [2d Dept 2003], Moreover, the Court must determine whether a cognizable cause of action can be discerned from the complaint rather than properly stated. Matlin Patterson ATA Holdings LLC v Fed. Express Corp., 87 A.D.3d 836, 839 [1st Dept 2011], "The complaint must contain allegations concerning each of the material elements necessary to sustain recovery under a viable legal theory.'" Id.
"In 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 plaintiffs claim" (Fortis Fin. Servs., LLC v Fimat Futures USA, Inc., 290 A.D.2d 383, 383 [1st Dept 2002] internal quotations and citations omitted). Further, dismissal pursuant to CPLR § 3211(a)(1) is warranted where documentary evidence "conclusively establishes a defense to the asserted claims as a matter of law." Gottesman Co. v A.E.W, Inc., 190 A.D.3d 522, 24 [1st Dept 2021].
Breach of the Lease Agreement- First Cause of Action
To plead breach of contract, the proponent must allege the existence of a contract, the plaintiffs performance thereunder, the defendant's breach thereof, and resulting damages. Second Source Funding, LLC v Yellowstone Cap. LLC, 144 A.D.3d 445, 445-46 [1st Dept 2016]; Harris v Seward Park Hous. Corp., 79 A.D.3d 425, 426 [1st Dept 2010], Defendant contends alleging that plaintiff failed to properly plead the requisite elements for the alleged breach of contract claim.
The Court finds that here, plaintiff has failed to adequately plead, in its amended complaint that defendant breached the lease agreement. The Court finds that the lease provides that the tenant was to take possession of the premises "as is", and while it is plaintiff s position that the premises could not be renovated to accommodate a restaurant, plaintiff fails to identify how this was due to a breach by the defendant.
Further, while the amended complaint sufficiently alleges that the parties entered into a lease agreement and that agreement contained a "pre-commencement license", that defendant breached by delaying plaintiffs access to the premises, plaintiff fails to identify how the delay resulted in any damages. Accordingly, the portion of defendant's motion that seeks dismissal for an alleged failure to state a claim for a breach of the lease agreement is granted.
Unjust Enrichment-Second Cause of Action
"To state a cause of action for unjust enrichment, a plaintiff must demonstrate "that (1) defendant was enriched, (2) at plaintiffs expense, and (3) that it is against equity and good conscience to permit defendant to retain what is sought to be recovered.'" Farina v Bastianich, 116 A.D.3d 546, 548 [1st Dept 2014] (internal citations omitted.)
It is undisputed that plaintiff is not in possession of the premises and that defendant has retained the security deposit. While there is a dispute as to the termination of the lease, the Court finds that the amended complaint sufficiently states a cause of action of action for unjust enrichment. Accordingly, the portion of defendant's motion that seeks to dismiss the unjust enrichment cause of action is denied.
Contractual Indemnity-Third Cause of Action
The defendant has not moved specifically as to this cause of action, however, has moved to dismiss the complaint in its entirety. The Court finds that based on the lease, plaintiff fails to state a cause of action for contractual indemnification. Plaintiff has not cited to any contract, other than the lease, and the lease does not provide for contractual indemnification of the tenant by the landlord. Specifically, paragraph 30 of the subject lease, entitled 'Indemnity' provides that the tenant shall indemnify landlord, under the specific enumerated circumstances. See Lease, NYSCEF Doc. 7, p. 53. Accordingly, plaintiffs cause of action for contractual indemnity is not viable and is therefore dismissed.
Recission/Cancellation of Lease Agreement-Fourth Cause of Action
"In order to invoke the doctrine of frustration of purpose, the frustrated purpose must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense" (Warner v Kaplan, 71 A.D.3d 1, 6 [2009]) (internal citations omitted). However, the First Department continues, "the doctrine [...] is not available where the event which prevented performance was foreseeable and a provision could have been made or its occurrence" id. (internal citations omitted).
The Court finds that plaintiff s amended complaint adequately states a cause of action for recission/cancellation of the lease. At this juncture, pre-answer and pre-discovery, there are questions as to whether the only permissible use of the premises was possible. Plaintiff contends that it was not, and thus it is entitled to recission, defendant does not agree. Neither party has cited to a provision of the lease addressing this occurrence. Accordingly, the portion of the motion that seeks to dismiss the fourth cause of action is denied.
Fraudulent Inducement-Fifth Cause of Action
"For a fraudulent inducement cause of action to be viable, it must be demonstrated that there was a false representation, made for the purpose of inducing another to act on it, and that the party to whom the representation was made justifiably relied on it and was damaged. Perrotti v Becker, Glynn, Melamed &Muffly LLP, 82 A.D.3d 495, 495 [1st Dept 2011].
Here, plaintiff has failed to plead a sufficient fraudulent inducement claim. The complaint fails to allege any facts to support the allegation that plaintiff was fraudulently induced to enter into the commercial lease agreement. See NYSCEF Doc. 7. As indicated above, the lease provides that plaintiff will take the location as is, plaintiff has failed to plead that it justifiably relied on any misrepresentation by defendant. Accordingly, it is hereby
ORDERED that plaintiffs first, third and fifth causes of action in its amended complaint are dismissed, and the motion is otherwise denied.