Opinion
INDEX NO. 154301/2019
09-18-2019
MARIA O'MARIA LLC, SHAUKAT ANWER, BEIGNETS, INC. D/B/A DELIMARIE Plaintiff, v. CORNERSTONE MANAGEMENT SYSTEM, INC.,106 DUANE STREET, LLC, Defendant.
NYSCEF DOC. NO. 23 PRESENT: HON. DAVID BENJAMIN COHEN Justice MOTION DATE 06/14/2019 MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22 were read on this motion to/for DISMISS.
Defendants' motion to dismiss is granted in part and denied in part. Plaintiffs allege that they are the owner/occupant of a commercial condominium located at 106 Duane Street, New York, New York. In August 2018, the Board of the Condominium voted to amend the bylaws and permit the installation of a water submeter on plaintiffs' unit and require plaintiffs to pay their unit's share of the charges. Defendants hired an outside company to prepare the billing and monitor the submeter. Plaintiff alleges four causes of action (1) that plaintiffs' common charges remained the same and defendants failed to adjust or credit plaintiffs' account once plaintiffs were being billed separately for their water usage; (2) unjust enrichment by charging plaintiffs more than their proper share and conspiring to do so; (3) defendants conspired and committed fraud by falsely billing plaintiffs for the entire building's water usage; and (4) unfair business practice. Defendants filed the instant motion to dismiss pursuant to CPLR 3211(a)(1) and (7). In support, defendants attached certain communications between the parties, a letter describing a one-time credit adjustment, the bylaws and amendment, and various invoices. Specifically, defendants argue that the corporate documents, letter and invoices show that there was no conspiracy as they were permitted to install the submeter and that a credit was in fact given to plaintiffs.
When deciding a motion to dismiss pursuant to CPLR §3211, the court should give the pleading a "liberal construction, accept the facts alleged in the complaint to be true and afford the plaintiff the benefit of every possible favorable inference" (Landon v. Kroll Laboratory Specialists, Inc., 22 NY3d 1, 5-6 [2013]; Faison v. Lewis, 25 NY3d 220 [2015]). However, if a complaint fails within its four corners to allege the necessary elements of a cause of action, the claim must be dismissed (Andre Strishak & Associates, P.C. v Hewlett Packard & Co., 300 AD2d 608 [2d Dept 2002]. A motion to dismiss pursuant to CPLR § 3211(a)(1), should not be granted unless the documentary evidence submitted is such that it resolves all factual issues as a matter of law and conclusively disposes of the claims set forth in the pleading (Art & Fashion Grp. Corp. v Cyclops Prod, Inc., 120 AD3d 436, 438 [1st Dept 2014]).
It is true that "[t]he court is not required to accept factual allegations, or accord favorable inferences, where the factual assertions are plainly contradicted by documentary evidence" (Bishop v Maurer, 33 AD3d 497, 498 [1st Dept 2006]). However, documentary evidence consists of submissions whose content's veracity is basically indisputable (Eisner v Cusumano Constr., Inc., 132 AD3d 940, 940-942 [2nd Dept 2015]).
Under CPLR § 3211(a)(7), the court "accepts as true the facts as alleged in the complaint and affidavits in opposition to the motion, accords the plaintiff the benefit of every possible favorable inference, and determines only whether the facts as alleged manifest any cognizable legal theory" (Elmaliach v Bank of China Ltd., 110 AD3d 192, 199 [1st Dept 2013] (quoting Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001])).
Although the Corporate documents would, in this case, qualify as proper documents for CPLR 3211(a)(1) purposes, the letter and third-party invoices do not. Typically, documents with indisputable veracity include or are comprised of judicial records (Eisner at 140-142). Outside of the judicial system, examples include mortgages, deeds, contracts, prior statements by parties or their agents—over the course of litigation— contradicting foundational elements within a claim (id.) since trustworthiness of such evidence "are essentially undeniable" (id.). Here, defendants argue that the letter shows a credit issued to plaintiffs. However, this self-serving letter is not a document of indisputable veracity for purposes of CPLR 3211(a)(1), as the facts contained therein are not undeniable. Additionally, although plaintiffs now acknowledge that they did receive a one-time credit (plaintiff did not do so in the Complaint), plaintiffs in opposition explain that said credit did not make them whole, as it only went through September 2018. Whether a further credit is needed or whether the credit provided made plaintiffs whole up until September 2018 is not evident from the letter and the motion to dismiss this cause of action is denied. For similar reasons, the motion to dismiss all the other claims under CPLR 3211(a)(1), is denied.
The motion to dismiss pursuant to CPLR 3211(a)(7), the first and second cause of action is denied. Taking all the alleged facts as true, even if defendants properly installed the submeter, plaintiffs were entitled to adjustments and credits. Similarly, to the extent that it is claimed defendants are enriching themselves by overbilling and not properly attributing the usage of water to the various other units, at plaintiffs' expense, plaintiffs have properly stated a cause of action for unjust enrichment.
However, the causes of action for fraud and unfair business practices are dismissed. Plaintiffs have not stated several of the elements for fraud. Specifically, plaintiffs have not (1) articulated any statements or representation by defendants; (2) plead that such a statement was made for the purpose of inducing plaintiffs into an action; or (3) that plaintiffs relied on or took any action as a result. Accordingly, the fraud cause of action must be dismissed.
The unfair business practice cause of action is also dismissed. First, the Complaint duplicates the statements made in the first two causes of action and then vaguely concludes that defendants' unfair business practices damaged plaintiffs. In addition, although defendants' specifically sought dismissal of this cause of action, plaintiffs' opposition does not defend this claim. Finally, New York's unfair business practices claim under General Business Law 349 requires an allegation that the practices had a broad impact on consumers at large (Nat. Organics Inc. v Anderson Kill & Olick, P.C., 67 AD3d 541 [1st Dept 2009]). Accordingly, it is hereby
ORDERED that defendants' motion to dismiss is granted to the extent that the third and fourth causes of action are denied and is otherwise denied; and it is further
ORDERED that plaintiffs' application in their opposition to amend the Complaint is denied without prejudice to such being sought in a proper motion; and it is further
ORDERED that the parties shall appear for a preliminary conference on October 23, 2019 at 9:30 am in Part 58, Room 574 in 111 Centre Street, New York, New York.
This constitutes the decision and order of the Court. 9/18/2019
DATE
/s/ _________
DAVID BENJAMIN COHEN, J.S.C.