Opinion
Index No. 657122/2021 MOTION SEQ. No. 001
08-11-2022
KLIENTBOOST, LLC Plaintiff, v. BLOOMBERG, LP., Defendant.
Unpublished Opinion
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) 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 were read on this motion to/for DISMISS.
Upon the foregoing documents, defendant's motion to dismiss is granted in part, and denied in part.
The Court would like to thank Andrew Bronstein for his assistance in this matter.
Facts
On or about July 1, 2019, the parties entered into a contract, (hereinafter "MSA") where plaintiff agreed to provide marketing consulting services to defendant in exchange for money. While the MSA governed the parties' general relationship, it contemplated that each particular service and project provided by plaintiff would be detailed in separate Statements of Work (hereinafter "SOWs"). The contract was for a period of 12 months, but would automatically renew for another 12 months unless defendant provided notice to plaintiff at least 90 days prior to the term ending. This relationship continued until July 2021. Plaintiff alleges that defendant breached the contract by not providing payment for services rendered and for terminating the agreement without the 90 days' notice. Defendant contends that their actions were proper, as § 2(a)(ii) of the MSA states that both the MSA, and any SOWs issued pursuant to the MSA, may be terminated by defendant "at any time for any reason or no reason upon not less than 30 days written notice."
Defendant now moves to dismiss pursuant to CPLR § 3211, alleging that plaintiffs complaint is insufficient in that it does not specify the provision of the contract between the parties that was allegedly breached, that the causes of action other than breach of contract must be dismissed because there was a valid contract between the parties, and that documentary evidence of the 30 days' notice by defendant to cancel the contract requires dismissal of the claims as they relate to any breach of the contract related to improper notice.
Discussion
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, 755 N.Y.S.2d 647, 2003 N.Y.App.Div. LEXIS 2102 (2d Dep't 2003); Bernberg v Health Mgmt. Sys., 303 A.D.2d 348, 756 N.Y.S.2d 96, 2003 N.Y.App.Div. LEXIS 2110 (2d Dep't 2003).
As noted above, defendant contends that plaintiff does not identify the provision of the contract in which its claim for monetary future damages is based. When a claim is founded upon a contract, the relevant portions of the contract should be set forth in the complaint. Bomser v. Moyle, 89 A.D.2d 202, 203, 455 N.Y.S.2d 12, 13 (1st Dep't 1982). Further, defendant contends that the implied covenant of good faith and fair dealing claim must be dismissed, because defendant has not acted in a way to prevent the performance of the rights under the contract, but merely exercised its' express contractual right. Additionally, defendant argues that the unjust enrichment and quantum meruit claims must be dismissed, because "it is impermissible... to seek damages in an action sounding in quasi contract where the suing party has fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties." Clark-Fitzpatrick, Inc. v. Long Island RR Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 656 (1987); see also, e.g., IDT Corp. v. Morgan Stanley Dean Witter & Co., 12N.Y.3d 132, 142, 879 N.Y.S.2d 355, 361 (2009).
Plaintiff contends that it has adequately pled a claim for breach of contract, as they have shown (1) the existence of an agreement, (2) plaintiffs performance, (3) defendant's breach, and (4) damages. Further, plaintiff contends that it is entitled to plead unjust enrichment and quantum meruit as alternative theories of recovery, as well as in support of the claim that defendant owes money for services outside the scope of the contracts. Plaintiff argues that even though these claims seek the same amount of damages as the amount sought in the breach of contract claim, dismissal of the quasi contract claims would be improper. Additionally, plaintiff contends that it has sufficiently pled a claim for breach of the implied covenant of good faith and fair dealing, as a plaintiff is entitled to allege this claim in the alternative to a breach of contract claim.
The Court notes that at oral argument, defendant agreed that plaintiff could amend the complaint to add the specific contractual provisions that was allegedly violated. Therefore, the Court need not address this argument of plaintiff. The Court further agrees with defendant in that there is no ambiguity that defendant had the right to terminate the contract for any reason with 30 days' notice, and this notice period was satisfied. Therefore, plaintiffs claim for breach of contract regarding future damages is dismissed, as this claim is not actionable.
The Court also agrees with plaintiff in that their quasi contract claims should survive the instant motion. The defendant has not met their burden of dismissal at this stage of the litigation as there were many terms of the contract, not all provided by defendant in support of its motion. As such, giving every favorable inference to the plaintiff at this stage of the litigation, it is by no means clear that there would not be valid quasi-contractual claims in the plaintiff for all or part of the damages sought in this matter. "Although there is support for the proposition that the existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery under alternative theories for events arising out of the same subject matter... [a plaintiff] need not elect a remedy in the pleading stage... and may plead alternative theories of recovery." Northeast Remsco Contr. v. John P. Picone, Inc., 2012 N.Y. Slip Op 51229(U), at ***4 (Sup. Ct. Nassau Co. 2012) (citing ARE Upstate Communications LLC v. RJ. Renter, LLC, 93 A.D.3d 929, 940 (3d Dep't 2012). Thus, these claims will continue. Accordingly, it is hereby
ORDERED that defendant's motion to dismiss is granted in part in that the first cause of action based on the "(1) fail[ure] to provide [plaintiff] with adequate notice of termination" is dismissed and the motion as it relates to dismissal to all other claims including the remainder of the first cause of action is denied; and it is further
ORDERED that plaintiff shall amend the complaint and serve it on defendant not more than 30 days of service of this order with notice of entry, and defendant shall serve an answer or otherwise respond not more than 20 days following such service..
As this Court has not ruled on the issue of the sufficiency of the plaintiffs first cause of action as to the remaining part of the breach of contract claim, the defendant may move to dismiss if it so chooses without this decision being seen as the Court having already decided the issue.