"Vague and conclusory allegations are insufficient to sustain a breach of contract cause of action." Marino v. Vunk, 39 A.D.3d 339, 340 (1st Dept 2007); see also Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182 (2011) (dismissing breach of contract claim because, plaintiff "only offer[ed] conclusory allegations without pleading the pertinent terms of the purported agreement, [leaving the court] to speculate as to the parties involved and the conditions under which [the] alleged . . . contract[s] [were] formed"); Matter of Sud v. Sud, 211 A.D.2d 423, 424 (1st Dept 1995) (internal citations omitted) (dismissing a breach of contract claim due to "plaintiff's failure to allege, in nonconclusory language, as required, the essential terms of the parties' purported contract, including the specific provisions of the contract upon which liability [was] predicated [and] whether the alleged agreement was, in fact, written or oral"). Here, the counterclaim for breach of contract is based on Joseph Lentini's "understanding that. . . 219's funds would not be used to fund . . . any of the Brothers' other ventures" (counterclaim, ยถ 175) and the Brothers' "express and/or implied mutual agreements with respect to 219" (id., ยถ 214), including that: each would "receive fifty percent (50%) of all of 219's net revenue, subject to the proviso that each Brother would defer receipt of a given payment in the event taking same might impair 219's ability to pay its expenses" (id., ยถ 163); they would share 219's expenses equally; and that they would be entitled to reimbursem
To state a cause of action for breach of contract, the proponent of the pleading must specify the making of an agreement, the performance by that party, breach by the other party, and resulting damages ( Volt Delta Resources LLC v Soleo Communications Inc., 11 Misc 3d 1071, 816 NYS2d 702 [Supreme Court New York County 2006], citing Furia v Furia, 116 AD2d 694, 695 [2d Dept 1986]). Furthermore, a complaint alleging breach of contract must set forth the terms of the agreement upon which liability is predicated by making specific reference to the relevant portions of the contract, or by attaching a copy of the contract to the complaint ( Kraus v Visa Intl. Serv Assn., 304 AD2d 408 [1st Dept 2003]; Matter of Sud v Sud, 211 AD2d 423, 621 NYS2d 37 [1st Dept 1995]). Fifth Cause of Action for Breach of Contract (Based on Contracts 1-5)
To state a cause of action for breach of contract, the proponent of the pleading must specify the making of an agreement, the performance by that party, breach by the other party, and resulting damages (Volt Delta Resources LLC v Soleo Communications Inc., 11 Misc 3d 1071, 816 NYS2d 702 [Supreme Court New York County 2006], citing Furia v Furia, 116 AD2d 694, 695 [2d Dept 1986]). Furthermore, a complaint alleging breach of contract must set forth the terms of the agreement upon which liability is predicated by making specific reference to the relevant portions of the contract, or by attaching a copy of the contract to the complaint (Kraus v Visa Intl. Serv Assn., 304 AD2d 408 [1st Dept 2003]; Matter of Sud v Sud, 211 AD2d 423, 621 NYS2d 37 [1st Dept 1995]). Fifth Cause of Action for Breach of Contract (Based on Contracts 1- 5)
To allege a breach of contract plausibly, a plaintiff must identify "the specific provisions of the contract upon which liability is predicated." Benihana of Tokyo, LLC v. Angelo, Gordon & Co., L.P., 259 F. Supp. 3d 16, 33 (S.D.N.Y. 2017) (citing Sud v. Sud, 211 A.D.2d 423, 424, 621 N.Y.S.2d 37 (1995)), aff'd, 712 F. App'x 85 (2d Cir. 2018) (summary order).
The oral promises to provide 1) financial support to plaintiff and her children for their lifetimes; 2) the best education that money could buy for the children; 3) employment in the family business for the children if they wished it; 4) an inheritance for plaintiff's children equivalent to that of the mother-in-law's other grandchildren; 5) an increase in Louis's financial support to aid him in raising his orthodox Jewish family; and 6) acceptance of plaintiff and her children as members of the family, all violate GOL ยง 5-701(a)(1), since none of them could be fully performed within one year of the making thereof (see, Nakamura v. Fujii, 253 A.D.2d 387, 388-89; Sud v. Sud, 211 A.D.2d 423, 424). Among other things, at the time of these alleged promises, plaintiff's children were ages three, two and one.
the terms and conditions of their... purported agreement"][quotation marks and citation omitted]; Canzona v Atanasio, 118 A.D.3d 837, 839 [2d Dept 2015] ["plaintiff's allegations regarding the alleged oral agreement were too vague and indefinite to plead a breach of contract cause of action"]; Barker v Time Warner Cable, Inc., 83 A.D.3d 750, 751 [2d Dept 2011]["In order to state a cause of action to recover damages for a breach of contract, the plaintiff's allegations must identify the provisions of the contract that were breached"]; Marino v Vunk, 39 A.D.3d 339, 340 [1st Dept 2007]["vague and conclusory allegations are insufficient to sustain a breach of contract cause of action"]; Island Surgical Supply Co. v Allstate Ins. Co., 32 A.D.3d 824, 824 [2d Dept 2006]["The complaint was properly dismissed pursuant to CPLR 3211 (a) (7) and 3013 because the allegations were vague, conclusory, and indefinite as to the alleged breach of numerous contracts by the defendant"]; Matter of Sud v Sud, 211 A.D.2d 423, 424 [1st Dept 1995][affirming dismissal of breach of contract claim based upon "plaintiff's failure to allege, in nonconclusory language, as required, the essential terms of the parties' purported contract, including the specific provisions of the contract upon which liability [was] predicated [and] whether the alleged agreement was, in fact, written or oral"]).
As an initial matter, the Fund is not a party the agreement, and therefore cannot have breached it. Plaintiffs allegations, made for the first time in opposition to the Fund's motion, that there was an oral agreement between the Fund and plaintiffs in addition to the agreement, or that Parker was an intended third-party beneficiary of the Fund's contract with Auburn, are too conclusory and vague to support a claim against the Fund (LaSalle Nat. Bank v Ernst & Young LLP, 285 A.D.2d 101, 108 [1st Dept 2001] ["A non-party may sue for breach of contract only if it is an intended, and not a mere incidental, beneficiary and even then, even if not mentioned as a party to the contract, the parties' intent to benefit the third party must be apparent from the face of the contract"]; Sud v Sud, 211 A.D.2d 423, 424 [1st Dept 1995] ["The IAS Court properly dismissed . . . [the] cause of action for breach of a 1976 contract ... as too vague and indefinite, and therefore unenforceable, for plaintiffs failure to allege, in nonconclusory language, as required, the essential terms of the parties' purported contract"]). Even if the allegations were sufficient, they are not pleaded in the complaint, and may not be raised for the first time in opposition to the complaint (Rumyacheva v City of New York, 36 A.D.3d 790, 790 [2d Dept 2007]).
"The motion must be denied 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, 151-152 [2002] [internal quotation and citations omitted]). However, while factual allegations contained in a complaint should be accorded a favorable inference, bare legal conclusions are not entitled to such consideration (see Matter of Sud v Sud, 211 AD2d 423, 424 [1st Dept 1995]). With this standard firmly in mind, the court proceeds to review the motions.
The complaint must set forth the terms of the agreement upon which liability is predicated by making specific reference to the relevant portions of the contract or by attaching a copy of the contract to the complaint (Atlantic Veal & Lamb, Inc. v Silliker, Inc., 11 Misc 3d 1072, 816 NYS2d 693 (Supreme Court, New York County 2006] citing Chrysler Capital Corp. v Hilltop Egg Farms, Inc., 129 AD2d 927, 928 [1987] and accord Valley Cadillac Corp. v Dick, 238 AD2d 894, 894 [1987]). To "withstand a motion to dismiss, a breach of contract cause of action must 'allege, in nonconclusory language . . . the essential terms of the parties' purported contract, including the specific provisions of the contract upon which liability is predicated" (Deutsche Bank Securities Inc. v Kong, 2008 WL 828067 (Trial Order) [Supreme Court, New York County 2008 citing Matter of Sud v Sud, 211 AD2d 423, 424 [1st Dept 1995]; see also, Volt Delta Resources LLC v Soleo Communications Inc., 11 Misc 3d 1071 citing Sud v Sud, 211 AD2d 423, 424 [1st Dept 1995]; and Caniglia v Chicago Tribune-New York News Syndicate Inc., 204 AD2d 233, 234 [1st Dept 1994]). Affidavits or other evidence "may be used freely to preserve inartfully pleaded, but potentially meritorious, claims" (Rovello v Orofino, Realty Co., 40 NY2d 633, 635 [1976] ("Under CPLR 3211 a trial court may use affidavits in its consideration of a pleading motion to dismiss")).
On a motion to dismiss pursuant to CPLR ยง 3211, the pleading is to be afforded a liberal construction, the facts as alleged in the complaint as true, and plaintiff is accorded the benefit of every possible favorable inference (Leon v. Martinez, 84 NY2d 83, 87-88 [citation omitted]). However, allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence are insufficient to defeat a motion to dismiss (Sud v. Sud, 211 AD2d 423, 424 [1st Dept 1995]).