By a decision and order dated June 5, 2015 (RAD & D'Aprile Inc. v Arnell Constr. Corp., 49 Misc 3d 189 [Sup Ct, Kings County 2015], affd sub nom. Rad & D'Aprile, Inc. v Arnell Constr. Corp., 159 AD3d 971 [2d Dept 2018]), now retired Justice Carolyn E. Demarest dismissed Rad's first, third, fourth, and fifth causes of action as time-barred. Specifically, Justice Demarest ruled that Rad's first and fourth causes of action for breach of contract accrued against Arnell upon substantial completion of its work, which occurred on September 30, 2005.

Five Star argues that the covenant of good faith and fair dealing "in this context requires the general contractor to 'take all reasonable steps so that the subcontractor's right to an eventual recovery, if any, from the owner will be protected.'" Pl. Mem. at 12 (citing RAD & D'Aprile, Inc. v. Arnell Constr. Corp., 74 N.Y.S.3d 266, 268-69 (2d Dep't 2018) ("D'Aprile")). As Defendants correctly note, however, the "context" to which the court was referring in D'Aprile was one in which the parties had, in fact, signed a liquidating agreement.

alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory" (Trump Vil. Section 4, Inc. v Bezvoleva, 161 A.D.3d 916, 917 [2d Dept 2018], citing Leon v Martinez, 84 N.Y.2d 83, 88 [1984]). "A motion to dismiss merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party's cause of action" (Kaplan v New York City Dep't of Health & Mental Hygiene, 142 A.D.3d 1050, 1051 [2d Dept 2016]". "In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims" (Garcia v Polsky, Shouldice & Rosen, P.C., 161 A.D.3d 828, 829 [2d Dept 2018], quoting Cron v Hargro Fabrics, 91 N.Y.2d 362 [1998]; see also Rad & D'Aprile, Inc. v Arnell Constr. Corp., 159 A.D.3d 971, 972 [2d Dept 2018] [holding that the court can consider affidavits and other evidence submitted to remedy pleading defects]).

The implied covenant of good faith and fair dealing between parties to a contract embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. It encompasses any promises that a reasonable person in the position of the promisee would be justified in understanding were included (seeMoran v. Erk, 11 N.Y.3d 452, 456–457, 872 N.Y.S.2d 696, 901 N.E.2d 187 ; 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 153, 746 N.Y.S.2d 131, 773 N.E.2d 496 ). As this Court observed on a prior appeal, the contractual covenant of good faith and fair dealing is implied in a liquidating agreement, as in every contract (seeRad & D'Aprile, Inc. v. Arnell Constr. Corp., 159 A.D.3d 971, 973, 74 N.Y.S.3d 266 ). The covenant of good faith and fair dealing required the defendant to take all reasonable steps so that the plaintiff's right to an eventual recovery, if any, from the City would be protected (seeMartin Mech. Corp. v. Mars Assoc., Inc., 158 A.D.2d 280, 550 N.Y.S.2d 681 ).

Moreover, the court may consider affidavits submitted by the plaintiff to remedy any defects in the complaint, and upon considering such an affidavit, the facts alleged therein must also be assumed to be true (seeJanusonis v. Carauskas, 137 A.D.3d 1218, 1219, 28 N.Y.S.3d 438 ; Kopelowitz & Co., Inc. v. Mann, 83 A.D.3d 793, 797, 921 N.Y.S.2d 108 ). "Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" ( Rad & D'Aprile, Inc. v. Arnell Constr. Corp., 159 A.D.3d 971, 972, 74 N.Y.S.3d 266 ).

The implied covenant of good faith and fair dealing between parties to a contract embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. It encompasses any promises that a reasonable person in the position of the promisee would be justified in understanding were included (see Moran v Erk, 11 N.Y.3d 452, 456-457; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 N.Y.2d 144, 153). As this Court observed on a prior appeal, the contractual covenant of good faith and fair dealing is implied in a liquidating agreement, as in every contract (see Rad & D'Aprile, Inc. v Arnell Constr. Corp., 159 A.D.3d 971, 973). The covenant of good faith and fair dealing required the defendant to take all reasonable steps so that the plaintiff's right to an eventual recovery, if any, from the City would be protected (see Martin Mech. Corp. v Mars Assoc., 158 A.D.2d 280).

"Whether a plaintiff can ultimately establish its allegations is not part of the calculus" (Trump Vill. Section 4, Inc. v. Bezvoleva, 161 A.D.3d 916, supra, quoting EBCI, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 799 N.Y.S.2d 170 [2005]). "In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims" (Garcia v. Polsky, Shouldice & Rosen, P.C., 161 A.D.3d 828, 77 N.Y.S.3d 424 [2 Dept., 2018], quoting Cron v. Hargro Fabrics, 91 N.Y.2d 362, 670 N.Y.S.2d 973 [1998]; see also Rad & D'Aprile, Inc. v. Arnell Constr. Corp., 159 A.D.3d 971, 74 N.Y.S.3d 266 [2 Dept., 2018]). "A motion to dismiss merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party's cause of action" (Kaplan v. New York City Dep't of Health & Mental Hygiene, 142 A.D.3d 1050, 38 N.Y.S.3d 563 [2 Dept., 2016]).

"In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims" (Garcia v. Polsky, Shouldice & Rosen, P.C., 161 A.D.3d 828, 77 N.Y.S.3d 424 [2 Dept., 2018], quoting Cron v. Hargro Fabrics, 91 N.Y.2d 362, 670 N.Y.S.2d 973 [1998]; see also Rad & D'Aprile, Inc. v. Arnell Constr. Corp., 159 A.D.3d 971, 74 N.Y.S.3d 266 [2 Dept., 2018]). "A motion to dismiss merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party's cause of action" (Kaplan v. New York City Dep't of Health & Mental Hygiene, 142 A.D.3d 1050, 38 N.Y.S.3d 563 [2 Dept., 2016]).

"In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims" (Garcia v. Polsky, Shouldice & Rosen, P.C., 161 A.D.3d 828, 77 N.Y.S.3d 424 [2 Dept., 2018], quoting Cron v. Hargro Fabrics, 91 N.Y.2d 362, 670 N.Y.S.2d 973 [1998]; see also Rad &D'Aprile, Inc. v. Arnell Constr. Corp., 159 A.D.3d 971, 74 N.Y.S.3d 266 [2 Dept., 2018]). "A motion to dismiss merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party's cause of action" (Kaplan v. New York City Dep't of Health &Mental Hygiene, 142 A.D.3d 1050, 38 N.Y.S.3d 563 [2 Dept., 2016]).

"In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims" (Garcia v. Polsky, Shouldice & Rosen, P.C., 161 A.D.3d 828, 77 N.Y.S.3d 424 [2 Dept., 2018], quoting Cron v. Hargro Fabrics, 91 N.Y.2d 362, 670 N.Y.S.2d 973 [1998]; see also Rad & D'Aprile, Inc. v. Arnell Constr. Corp., 159 A.D.3d 971, 74 N.Y.S.3d 266 [2 Dept., 2018]). "A motion to dismiss merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party's cause of action" (Kaplan v. New York City Dep't of Health & Mental Hygiene, 142 A.D.3d 1050, 38 N.Y.S.3d 563 [2 Dept., 2016]).