Opinion
7661/08.
Decided April 13, 2009.
Charles Tucker Jr., Esq., Morton Tucker LLP, Waldorf, MD, Attorney for Plaintiff.
Cassandra Cean, Esq., Cean Owens, LLC, Valley Stream, NY, Attorney for Defendants.
Upon the foregoing papers, defendants Behind the Bench, Inc./National Basketball Wives Association (BTB), Charrisse Jackson-Jordan (Jackson-Jordan), Anita Demps (Demps), Monica Smith (Smith), Juliannah Richmond (Richmond), and Gina Coleman (Coleman) (collectively, defendants), move for an order, pursuant to CPLR 3211(a)(7) and (a)(2), dismissing the amended complaint of plaintiff The Stanley Agency, Inc. (plaintiff or TSA), for failure to state a cause of action, and for lack of personal jurisdiction.
The individual named defendants are allegedly board members of corporate defendant BTB. When the instant action was commenced, Jackson-Jordan served as BTB's President, Demps as Treasurer, Richmond as Vice-President, and Coleman as the Public Relations Chairperson. According to the parties' submissions, BTB is a District of Columbia non-profit corporation with at least one place of business in Potomac, Maryland. TSA is described as a New York corporation with offices in Brooklyn.
The court notes that defendants move for dismissal pursuant to CPLR 3211(a)(2), for lack of subject matter jurisdiction. However, defendants' reliance on CPLR 3211(a)(2) is misplaced, as the affidavit submitted in support of the motion clearly evinces the argument that certain defendants were improperly served and, therefore, that personal jurisdiction is lacking. In this regard, it is apparent that defendants intended to move under CPLR 3211(a)(8), for lack of personal jurisdiction, rather than CPLR 3211 (a)(2). Since plaintiff was adequately apprised of the basis for the motion and, in fact, opposed defendants' arguments regarding personal jurisdiction, the court will disregard defendants' mistake as a "technical defect" ( see e.g. Farkas v Tarrytown Lumber, Inc., 133 AD2d 251 [1987]).
Factual and Procedural Background The Agreement
The instant action arises out of defendants' alleged breach of the "Proprietary Event Marketing Agreement" (the Agreement), entered into between BTB and TSA on or about September 1, 2006. The purpose of the Agreement was allegedly to provide for the management and production of BTB's annual charitable fund-raiser, the Touching a Life Gala (TALG), held February 16, 2007 at the MGM Grand Hotel in Las Vegas, Nevada. The Agreement was executed by the "duly authorized representatives" of the parties, namely, Jackson-Jordan, President of BTB, and Erica Stanley, President of TSA.
Pursuant to the terms of the Agreement, TSA was to be "primarily responsible for all areas relating to managing, creating, producing and the production of the TALG[,] and to assist [BTB] in the marketing and promotion of same." As per Section 3.01 of the Agreement, BTB and TSA agreed to a proposed itemized budget totaling $309,500, which was "intended to provide BTB with estimated costs and fees associated with the TALG." According to the terms of the Agreement, TSA was to "use its best efforts to spend less than the respective budgeted line items whenever possible without compromising the integrity and quality of the TALG," and to "use its best efforts not to exceed the Budget without the express written consent of BTB." Further obligations of the parties were set forth in Section 5.02 of the Agreement, which reads as follows:
"TSA shall use its best efforts to raise 100% of the Budget . . . in corporate sponsorship revenue to cover all the TALG costs outlined in the budget, but it is the expectation of both parties that at a minimum, TSA shall raise 75% of the Budget. If TSA fails to raise a minimum of 70% of the Budget in corporate sponsorship revenue (or the amount of sponsorship revenue necessary to cover the actual TALG costs), TSA is not guaranteeing the shortfall (i.e. the difference between the sponsorship dollars raised and the TALG costs). BTB shall remain responsible for paying the balance of authorized TALG costs (regardless of whether the funds come from other revenues raised at the TALG or other BTB sources)."
Regarding the costs and expenses of the TALG, the Agreement also states that, "TSA shall be responsible for managing all costs, expenses and other charges associated with and incurred as a result of the TALG . . . [h]owever, BTB shall remain liable for all authorized TALG costs."
The Complaint
Plaintiff's complaint sets forth 254 numbered factual allegations that serve as the basis for five causes of action asserted against defendants. As stated in the complaint, plaintiff alleges that it was first contacted by BTB in March 2006 regarding the possibility of producing BTB's annual fund-raiser. During subsequent telephone calls to BTB, plaintiff claims that it explicitly described its collaborative business model to BTB, and emphasized the fact that BTB was expected to participate in raising sponsorship revenue for the event. According to plaintiff, it moved forward with planning the TALG in July 2006, despite not having an executed contract at that time. In the months preceding the event, plaintiff alleges that it made multiple trips to Las Vegas, at its own expense, to secure vendors for the TALG and to conduct site visits. Plaintiff further alleges that BTB paid the first half of its retainer in December 2006, but that the Agreement was not executed by BTB until January 18, 2007.
According to plaintiff, during a series of conference calls with BTB board members prior to the event, BTB and TSA agreed to increase the TALG budget to $400,000, in order to cover adjusted costs and expenses. The complaint states that such revisions were agreed upon by BTB and TSA, and authorized by BTB pursuant to Section 5.02 of the Agreement. Plaintiff contends that, prior to the date of the TALG, it became apparent that proceeds would fall short of covering the costs and expenses associated with the event. According to plaintiff, this "shortfall" was the result of BTB's failure to comply with its contractual duties and responsibilities. In this regard, plaintiff asserts that it repeatedly explained to BTB that, consistent with Section 5.02 of the Agreement, if corporate sponsorships fell short of expectation, the money raised from ticket and table sales would be used to cover any outstanding costs and expenses. Plaintiff also claims that it reiterated to BTB that BTB would be ultimately liable for any shortfall in covering the costs and expenses arising from the production of the event. Plaintiff further maintains that it consistently emphasized to BTB that any outstanding bills were BTB's sole responsibility. Specifically, plaintiff alleges that on September 17, 2006, Demps, Smith, Coleman and Richmond participated in a conference call where the budget and the respective roles of the parties were discussed. In addition, on October 25, 2006, Demps, Smith, Coleman and Richmond allegedly spoke with TSA regarding the budget and the terms of the Agreement. Plaintiff also alleges that Jackson-Jordan, Demps, and Coleman participated in a conference call on December 5, 2006, and that Jackson-Jordan, Demps, Smith and Richmond again spoke with plaintiff on December 12, 2006. According to plaintiff, during the latter call, plaintiff apprised BTB of the status of the budget, and expressed concerns regarding how BTB's lack of participation was affecting potential projected revenue. During another conference call on December 20, 2006, plaintiff alleges that several officers, including Demps and Jackson-Jordan, were "agitated" about the level of participation required of BTB members. Plaintiff contends that Jackson-Jordan also informed it that BTB members expected free seats at the TALG, as they had not been required to purchase tickets for the event in previous years. On February 12, 2007, plaintiff asserts that it reiterated to Jackson-Jordan and Demps that revenue might not cover costs and expenses, and that it might have to pull from ticket and table sales to cover the shortfall. Plaintiff also alleges that, at that time, Jackson-Jordan volunteered to purchase a $12,500 VIP table at the event.
After the TALG, plaintiff asserts that it began to reconcile the sales, costs and expenses of the event, and that it provided a final accounting to Jackson-Jordan and Demps via conference call in April 2007. Plaintiff avers that notwithstanding TSA's completion of its duties consistent with the Agreement, there was a "substantial shortfall." Soon after the April conference call, plaintiff contends that BTB informed it that Jackson-Jordan had "changed her mind," and that she was not going to pay for the VIP table her family allegedly used at the event. According to plaintiff, on a May 10, 2007 conference call, BTB agreed to pay the outstanding balance of $215,000. In July 2007, Jackson-Jordan allegedly told plaintiff that she was getting a check from the bank to pay the MGM bill. However, plaintiff claims that BTB never tendered payment, and that Jackson-Jordan and Demps would not return its calls regarding requests for payment. After several months without payment from BTB, plaintiff contends that its attorney sent a demand letter to BTB on August 13, 2007, requesting payment of the outstanding bills. To date, plaintiff claims that it is owed approximately $215,000 in outstanding expenses. In addition, plaintiff contends that the MGM Grand has retained control of its deposit, causing plaintiff to lose daily interest thereon. Plaintiff claims to have incurred both monetary and equitable damages as a result of BTB's failure to pay.
Consequently, plaintiff commenced the instant action by filing a summons and complaint on or about March 24, 2008. Plaintiff asserts fives causes of action against defendants, namely, breach of contract, breach of fiduciary duty under General Business Law § 359, fraud, violation of General Business Law § 349, and unjust enrichment. Defendants filed the instant pre-answer motion to dismiss, pursuant to CPLR 3211(a)(7) and (8), on or about August 14, 2008.
Motion to Dismiss for Lack of Personal Jurisdiction The Parties' Contentions
As a threshold issue, defendants move to dismiss the complaint for improper service and lack of personal jurisdiction as against BTB, Smith, Richmond, Coleman and Demps. Defendants allege that the "Certificate of Service" attached to the summons and complaint does not indicate that a "Statement of Acknowledgement" was sent to defendants in accordance with CPLR 312-a. Further, defendants deny that plaintiff ever attempted personal service upon the above defendants. According to defendants, Jackson-Jordan did not have the authority to accept service on behalf of BTB or its members. Therefore, defendants aver that service was defective as to BTB and the remaining individual defendants.
In opposition to that branch of defendants' motion which seeks to dismiss the complaint as against BTB, Smith, Richmond, Coleman and Demps for lack of personal jurisdiction, plaintiff maintains that its service of these defendants was proper. Plaintiff submits a copy of the "Certificate of Service," which states that the amended complaint was served by first-class mail to all defendants in March 2008. According to plaintiff, the Certificate of Service also indicates that a Statement of Acknowledgment was sent to defendants in accordance with CPLR 312-a. Contrary to defendants' argument, plaintiff submits an affidavit from its attorney which states that personal service of BTB, Smith, Richmond, Coleman and Demps was attempted by plaintiff. Furthermore, with the exception of Demps, plaintiff alleges that defendants were served at the official place of business and local headquarters of BTB in Maryland (at an address identical to the purported residential address of Jackson-Jordan). Plaintiff submits an "Affidavit of Service," wherein the process server indicates that a copy of the summons and complaint was delivered to Eddie Jordan, Jackson-Jordan's husband, who accepted service on behalf of his wife. Plaintiff argues that Jackson-Jordan, "as President of BTB, acted in her official capacity when she received service on behalf of BTB as an entity[,] as well as [on behalf of] the individuals named therein." Moreover, plaintiff avers that, "given that Defendants are not challenging the service of the President of BTB[,] who had apparent authority to accept service of the Complaint for the remaining Defendants, the service was proper." With respect to Demps, plaintiff asserts that personal service was attempted at her home address in Texas, but that it was "unsuccessful," due to Demps living in a gated community with restricted access. Another "Affidavit of Service" submitted by plaintiff indicates that a process server left the summons and complaint with a security guard identified as "Officer Acosta."
Applicable Standards
A complaint may be subject to dismissal pursuant to CPLR 3211 (a)(8) in cases where a defendant was improperly served and, resultantly, where the court lacks personal jurisdiction over such defendant. The law is clear that the burden of proving jurisdiction is upon the party who asserts it, and that party must show, by the complaint and by supporting affidavits, the essential requirements of the personal jurisdiction statute ( see Saratoga Harness Racing Assn., Inc. v Moss, 26 AD2d 486, 490). Furthermore, "[t]he court will not find personal jurisdiction based on conclusory and unsubstantiated assertions" ( Brown v Blum, 1999 WL 1042904, * 2 [NY Supp], citing Spectra Products, Inc. v Indian River Citrus Specialties, Inc., 144 AD2d 832, 833; Lamarr v Klein, 35 AD2d 248, 250).
As relevant here, CPLR 3211 (e) requires that the "papers in opposition to a motion based on improper service shall contain a copy of the proof of service, whether or not previously filed." "Proof of service" is governed by CPLR 306, which requires that such proof will be "in the form of . . . an affidavit . . . or in the form of a signed acknowledgment of receipt of a summons and complaint, . . . as provided for in section 312-a of this article" (CPLR 306 [d]). Moreover, CPLR 306 (b) requires that, "proof of service shall specify the papers served, the person who was served and the date, time, address, or, in the event there is no address, place and manner of service, and set forth facts showing that the service was made by an authorized person and in an authorized manner."
Discussion
Turning to the threshold issue of whether plaintiff effected proper service upon defendants, the court preliminarily notes that defendants move to dismiss the complaint for lack of proper jurisdiction only as against BTB, Demps, Smith, Richmond and Coleman. Defendants' failure to object to plaintiff's service of Jackson-Jordan constitutes a waiver of the defense of lack of personal jurisdiction as to this particular defendant (see CPLR 3211 [e]).
CPLR 3211 (e) provides, in pertinent part, that "[a]n objection based upon a ground specified in paragraph eight or nine of subdivision (a) is waived if a party moves on any of the grounds set forth in subdivision (a) without raising such objection."
Service of Process Pursuant to CPLR 312-a
Plaintiff claims to have properly served defendants using various methods prescribed by the CPLR, including service by first-class mail. As an alternative to service pursuant to CPLR 307, 308, 310, 311 or 312, a plaintiff may serve a corporate or individual defendant under CPLR 312-a by mailing the summons and complaint to the defendant via first-class mail, accompanied by two copies of a "Statement of Service by Mail" and an "Acknowledgment of Receipt." Both documents must substantially comply with the form and language prescribed by the statute. The failure to enclose forms that are in substantial compliance with CPLR 312-a (d) is a jurisdictional defect and renders the complaint subject to dismissal pursuant to CPLR 3211 (a)(8) ( see generally Munoz v Reyes , 40 AD3d 1059 , 1059 ; see also Strong v Bi-Lo Wholesalers, 265 AD2d 745, 745). Service by mail is only complete when the acknowledgment of receipt in the form prescribed by CPLR 312-a (d) is mailed or returned to the sender (see CPLR 312-a [b]). "If the acknowledgment of receipt is not mailed or returned to the sender, the sender is required to effect personal service in another manner" ( Matter of Shenko Elec., Inc. v Hartnett 161 AD2d 1212, 1213; see also Kostelanetz Fink, L.L.P. v Hui Qun Zhao, 180 Misc 2d 847).
In the "Certificate of Service" submitted by the parties, attorney Benjamin Morton states that a true copy of the summons and complaint was served on each defendant on March 24, 2008 by pre-paid first-class mail. Plaintiff also alleges that the summons and complaint were mailed in accordance with the requirements set forth in the statute. As stated above, service by mail pursuant to CPLR 312-a is only complete when an Acknowledgment of Service is mailed or returned to the sender ( see Matter of Shenko Elec., Inc., 161 AD2d at 1213). Plaintiff bears the burden of demonstrating proof of service under the circumstances ( see Munoz, 40 AD3d at 1059 ; see also CPLR 3211 [e]). Even though plaintiff alleges that it met the requirements of mailing under CPLR 312-a, it proffers no documentary evidence which demonstrates that an Acknowledgment was mailed by any of the subject defendants. Therefore, personal jurisdiction cannot be said to have been acquired as to any of the listed defendants pursuant to CPLR 312-a. However, this determination is not dispositive on the issue of service, since plaintiff also alleges proper service of defendants under the alternate methods discussed below.
Service of Process Upon BTB/ CPLR 311 (a) (1)
With respect to plaintiff's argument that service on Jackson-Jordan constitutes proper service on the remaining defendants, the court first notes that personal service upon a corporation and personal service upon a natural person have separate and distinct statutory requirements. According to CPLR 311 (a) (1), personal service upon a domestic or foreign corporation can be effectuated by delivering the summons "to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or law to receive service." Generally, CPLR 311 (a) (1) requires that the process server must tender process directly to an authorized corporate representative, rather than an unauthorized person who later hands the process to an officer or other qualified representative ( see Shuck v 7309 Corp., 90 AD2d 828).
In opposition to defendants' motion, plaintiff submits an "Affidavit of Service," dated June 27, 2008, wherein the process server states that a copy of the summons and complaint was served on "Eddie Jordan for Charrisse Jackson-Jordan," at "12620 Tribunal Lane" in Potomac, Maryland. The affidavit identifies Eddie Jordan as the spouse of Jackson-Jordan, and describes the premises as the "usual place of abode" of the defendant. Upon examining the affidavit, the court notes that the document is not notarized and that it is bereft of any detail regarding BTB or any other individual defendant. There is also no indication that multiple copies of the summons and complaint were personally delivered to Eddie Jordan at that time.
It is well stated that "a properly executed affidavit of service gives rise to a presumption of valid service" ( Sutton Place Restaurant and Bar, Inc. v Garnett, 20 Misc 3d 1104 (A), *4 [2008]). However, where, as here, the affidavit submitted by plaintiff is unsworn and otherwise defective, the presumption of valid service is clearly not applicable. Nevertheless, even if the affidavit was properly executed, the court would find that plaintiff's method of service upon Jackson-Jordan did not constitute proper service upon BTB. In this regard, it is true that Jackson-Jordan would have been authorized to accept service on behalf of BTB pursuant to CPLR 311 (a) (1). In addition, the Appellate Division, Second Department has held that service of a single summons on an officer of a corporation, who is also an individual defendant, constitutes proper service on both the corporation and the individual defendant ( see Port Chester Elec. Co. v Ronbed Corp., 28 AD2d 1008). However, as reflected in the affidavit proffered by plaintiff, service was not made upon Jackson-Jordan, but rather, upon her husband Eddie Jordan. While service upon a person of suitable age and discretion is sufficient under the "deliver and mail" provision of CPLR 308 (2) for service of natural persons, this method of service is not available to corporate defendants under CPLR 311. Since Eddie Jordan was neither alleged to be an employee, nor an authorized agent of BTB, his acceptance of service of process cannot constitute service upon the corporate defendant in accordance with CPLR 311 ( see Skelly v Margus Co., Inc., 203 AD2d 276[service of process upon the wife of a corporate officer, who was not associated with the corporation, was not proper service upon the corporate defendant]; see also Schuck v 7309 Corp., 90 AD2d at 828 [service of process upon the mother of a corporate officer, who was not authorized to receive service for the corporation, was not proper service on the corporate]; see also Dewey v Hillcrest Gen. Hosp., 201 AD2d 609). Since the Affidavit of Service is patently flawed, and because there is no proof that BTB was properly served pursuant to CPLR 311, or in any other acceptable manner, such as service upon a registered agent or upon the Secretary of State (see CPLR 318; see also Business Corporation Law § 306 (a) and (b)[1]), plaintiff's contention that BTB was properly served is without merit ( see generally DeZego v Bruhn, 99 AD2d 823). The court is not authorized to overlook such fundamental service flaws, but rather is constrained to dismiss the complaint as against BTB pursuant to CPLR 3211 (a) (8) for want of personal jurisdiction over the corporation. This is true even if BTB had conceded that it actually received the summons and complaint, since it is well established that "[w]hen the requirements of service of process have not been met, it is irrelevant that [a] defendant may have actually received the documents" ( County of Nassau v Letosky , 34 AD3d 414 , 415[internal quotation marks and citation omitted]).
Accordingly, the complaint is dismissed as against BTB for failure to effectuate proper service and for lack of personal jurisdiction pursuant to CPLR 3211 (a) (8).
Service of Process Upon Defendants Smith, Richmond and Coleman/ CPLR 308 (2)
With respect to the alleged personal service of defendants Smith, Richmond and Coleman, CPLR 308 (2) pertinently provides that personal service upon a natural person can be made by:
"delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business . . . such delivery and mailing to be effected within twenty days of each other; proof of service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later."
The term "actual place of business" includes that location that the person to be served, "through regular solicitation or advertisement, has held out as [his or her] place of business" (CPLR 308).
Plaintiff allegedly delivered only one copy of the summons and complaint to Eddie Jordan, who accepted service on behalf of his wife. Plaintiff argues that such service on Jackson-Jordan, as a representative of BTB, also constitutes proper service upon board members Smith, Richmond and Coleman. Plaintiff does not allege that any other attempts were made to personally deliver the summons and complaint to these defendants. There is also no evidence that the process server delivered multiple copies of the complaint, or that any copies were mailed to the above defendants. Plaintiff contends that its delivery of one copy of the summons and complaint to Eddie Jordan, a person of suitable age and discretion, at the alleged place of business of BTB, constitutes proper service upon Smith, Coleman and Richmond under CPLR 308 (2).
Initially, the court notes that, for reasons already stated, the Affidavit of Service cannot evidence proper service pursuant to CPLR 308 (2), since it is unsworn and bereft of necessary detail. In addition to the previously cited deficiencies, the affidavit also does not show compliance with CPLR 308 (2) rules for mailing of process. Indeed, "the statute requires that the affidavit of service show the time, date, place and person served; it must also set forth facts showing that the service was made by an authorized person in an authorized manner'" ( James v Brandt, 144 Misc 2d 190, 191). The affirmative burden of alleging compliance with CPLR 308 (2) is placed on the plaintiff ( see James, 144 Misc 2d at 191). Despite plaintiff's submission of an Affidavit of Service, the court finds that plaintiff has not met this burden. In this regard, the initial first-class mailing allegedly performed by plaintiff in March 2008 would not suffice as proof of the mailing component of CPLR 308, since the mailing must be performed within 20 days of personal delivery. Failure to serve and mail the summons and complaint within 20 days of each other is considered a jurisdictional defect that is grounds for dismissal of an action ( see New York State Higher Educ. Servcs. Corp. v Palmeri, 167 AD2d 797). With no evidence tendered to establish the existence or propriety of the requisite mailing, the affidavit submitted by plaintiff does not establish valid service under CPLR 308 (2).
Furthermore, even if the affidavit were properly executed as claimed by plaintiff, plaintiff's alleged service of defendants Smith, Richmond, and Coleman would be deemed improper on other grounds. Although factually distinguishable, the Court of Appeals' ruling in Raschel v Rish, ( 69 NY2d 694) is instructive on the issue of serving multiple defendants as the result of a single delivery. In Raschel, the Court of Appeals held that, since the CPLR is "silent as to the number of copies of a summons and complaint that must be served on a person conceivably acting in more than one representative capacity, the guiding principle must be one of notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections'" ( Raschel, NY2d at 696-697, quoting Mullane v Central Hanover Trust Co., 339 US 306). Assuming that Jordan-Jackson's residence was the actual place of business of BTB, and that Eddie Jordan was a person of suitable age and discretion to accept service of process on behalf of defendants Smith, Coleman and Richmond, there is still no evidence that Jackson-Jordan knew, or could easily have inferred, that plaintiff intended to serve multiple defendants by serving her. Indeed, the affidavit listed only Jackson-Jordan as the intended recipient of service. To that effect, there is no evidence that Jackson-Jordan had the requisite notice to apprise all interested parties of the pendency of the action and furnish them copies of the summons and complaint. In any event, "[w]hen the requirements for service have not been met, it is irrelevant that a defendant may have actually received the documents" ( Raschel at 697).
Plaintiff, who bears "the ultimate burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process" ( Munoz, 40 AD3d at 1059 [internal quotation marks and citation omitted]), has failed to proffer sufficient evidence in opposition to defendants' motion to show that the Smith, Coleman, and Richmond were properly served.
Accordingly, the complaint is dismissed as against Smith, Coleman and Richmond for failure to effectuate proper service and for lack of personal jurisdiction pursuant to CPLR 3211 (a) (8).
Service of Process Upon Demps/CPLR 308 (2)
As to defendants' motion to dismiss the complaint against Demps for improper service of process and lack of personal jurisdiction, plaintiff has proffered a sworn "Affidavit of Service," dated June 27, 2008, which indicates that the process server attempted to personally serve Demps at "19211 Habitat Cove" in San Antonio, Texas, a location designated as Demps' "usual place of abode." Plaintiff further alleges, in its opposing affidavit drafted by counsel, that a security guard at the entrance of Demps' sub-division restricted the process server from accessing Demps' home. The affidavit of service also states that a copy of the summons and complaint was delivered to "Officer Acosta," at the entrance gate of Demps' sub-division.
Service to a guard outside a gated community has been held to be a proper location for service, since the "outer bounds of defendant's actual dwelling place are deemed to extend to the security booth" ( Costine v St. Vincent's Medical Hospital Medical Center, 173 AD2d 422; see also Board of Managers of Le Trianon Condominium v 1439 Realty Corp., 186 AD2d 437; see also Duffy v St. Vincent's Hosp., 198 AD2d 31). However, defendants must also show that the guard "exhibited sufficient maturity and responsibility under the circumstances," and that the other requirements of service under CPLR 308 (2) were met ( Costine, 173 AD2d at 422). Here, the affidavit does not indicate that Officer Acosta agreed to deliver the process to Demps, nor is there an affidavit from an individual with personal knowledge to explain the circumstances of the attempted delivery. Even assuming that the affidavit established that the security guard was a suitable person for delivery, it still does not establish, prima facie, that a copy of the summons and complaint was mailed to Demps in the manner required by CPLR 308 (2). As the court already noted, a facially deficient affidavit cannot create a presumption of valid service upon Demps. While plaintiff is not required to confirm Demp's receipt of the mailing, plaintiff is required to show that the mailing was properly sent in order to demonstrate proof of service. Plaintiff fails to meet this burden.
Accordingly, the complaint is dismissed as against Demps for failure to effectuate proper service and for lack of personal jurisdiction pursuant to CPLR 3211 (a) (8).
Motion to Dismiss for Failure to State a Cause of Action The Parties Contentions
Defendants also move to dismiss the complaint against defendants for failure to state a cause of action. In response to plaintiff's allegations set forth in the complaint, defendants argue that TSA unilaterally increased the budget and incurred unnecessary fees on behalf of BTB, without the knowledge or consent of BTB. As a result, defendants contend that the total cost of the TALG was approximately $100,000 more than the $309,500 budget contractually agreed upon by the parties. With respect to plaintiff's allegations that Jackson-Jordan, Demps, Smith, Coleman and Richmond (collectively, the individual defendants) breached the terms and conditions of the Agreement, defendants argue that the language of the Agreement clearly sets forth that plaintiff entered into a binding contract only with BTB, and not with any of the individual defendants. Consequently, as none of the individual defendants were named in the Agreement, defendants allege that there is no privity of contract between plaintiff and the individual defendants upon which to base plaintiff's breach of contract cause of action.
As this court has dismissed the complaint as against BTB, Smith, Coleman, Richmond and Demps for lack of personal jurisdiction, defendants's motion to dismiss pursuant to CPLR 3211 (a)(7) need only be addressed as to the causes of action asserted against Jackson-Jordan.
Furthermore, defendants assert that shareholders of a corporation do not become liable to one who has contracted with the corporation for inducing the corporation to breach its contract merely because they have made decisions and taken actions that resulted in the corporation's alleged breach. In this regard, defendants aver that since plaintiff has failed to sufficiently set forth any intentional torts, predatory acts, or bad faith on the part of the individual defendants, that plaintiff's causes of action against them should be dismissed. Defendants also argue that plaintiff fails to successfully plead any claims against the individual defendants since the complaint refers to them collectively and does not particularize the alleged independent torts or predatory acts of each defendant.
In opposition to defendants' motion, plaintiff argues that there is sufficient evidence to support a finding of liability on the part of defendants. Specifically, plaintiff contends that privity of contract was established between TSA and the individual defendants and, therefore, that they can be held liable for actions and conduct arising from the alleged breach According to plaintiff, the facts demonstrate that the individual defendants were directly involved in the creation and development of the Agreement. As the individual defendants were routinely present on various conference calls with plaintiff to discuss and approve items related to the TALG, plaintiff avers that the individual defendants were instrumental to the development of the final terms and the execution of the Agreement.
Additionally, as to the individual defendants' claims that they are immune to personal liability due their status as shareholders, plaintiff claims that, as a result of BTB's status as a non-profit corporation, the individual defendants are members, not shareholders. Therefore, plaintiff alleges that the individual defendants are not entitled to the personal immunity of shareholders.
Alternatively, if the court determines that the individual defendants are shareholders and, thus, can be held personally liable for BTB's alleged breach of contract, plaintiff argues that the individual defendants acted in bad faith and the causes of action against them should not be dismissed. In this regard, plaintiff avers that the board members approved changes to the budget, but then later refused to pay plaintiff for services rendered. According to plaintiff, defendants' actions constitute independent torts and/or predatory acts against plaintiff, and defendants' knowing refusal to pay demonstrates bad faith, thus breaching the contract. Plaintiff further argues that, as officers and/or members of the board of directors, the individual defendants had a fiduciary duty to act appropriately on BTB's behalf, and that said duty was breached. Plaintiff contends that defendants' "conduct amounted to fraud by their failure to fulfill their contractual duties."
CPLR 3211 (a) (7) Standard
It is well settled that, "as a general rule, on a motion to dismiss the complaint for failure to state a cause of action under CPLR 3211 (a) (7), the complaint must be construed in the light most favorable to the plaintiff and all factual allegations must be accepted as true" ( Gruen v County of Suffolk, 187 AD2d 560, 562). Additionally, "[t]he pleading is deemed to allege whatever can be implied from its statements by fair and reasonable intendment" ( Components Direct, Inc. v European American Bank and Trust Co., 175 AD2d 227, 232). "[I]f from [the complaint's] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" ( Guggenheimer v Ginzburg, 43 NY2d 268, 275). "The criterion is whether the plaintiff has a cause of action and not whether he [or she] may ultimately be successful on the merits" ( One Acre, Inc. v Town of Hempstead, 215 AD2d 359). Accordingly, the dismissal of a complaint pursuant to CPLR 3211(a) (7), "will be warranted only in those situations in which it is conclusively established that there is no cause of action" ( Town of North Hempstead v Sea Crest Constr.Corp., 119 AD2d 744, 746).The statements supporting a cause of action, however, "must be sufficiently particular to give the court and parties notice of the transactions or occurrences to be proved and must support the material elements of the cause of action" ( Matter of Reden v Nassau County Serv. Comm., 133 AD2d 694, 694). Bare legal conclusions are not entitled to the general presumption that the facts pleaded are presumed to be true ( Tal v Malekan, 305 AD2d 281, lv denied 100 NY2d 513; Kantrowitz Goldhamer, P.C. v Geller, 265 AD2d 529, 529; Sotomayor v Kaufman, Malchman, Kirby Squire, LLP, 252 AD2d 554, 554; WFB Telecommunications v NYNEX Corp., 188 AD2d 257, 259, lv denied 81 NY2d 709). "Under New York rules of procedure, conclusory averments of wrongdoing are insufficient to sustain a [cause of action] unless supported by allegations of ultimate facts'" ( Vanscoy v Namic USA Corp., 234 AD2d 680, 682, quoting Muka v Greene County, 101 AD2d 965, lv denied 64 NY2d 610). Accordingly, "[a]lthough the narrow question presented on review of a motion to dismiss is not whether a plaintiff should ultimately prevail in the action, but whether the complaint states cognizable causes of action, vague and conclusory allegations will not suffice" ( Shariff v Murray , 33 AD3d 688 , 690; accord Stoianoff v Gahona, 248 AD2d 525, 526; Washington Ave. Assocs. v Euclid Equipment, Inc., 229 AD2d 486, 487). Moreover, factual claims which are flatly contradicted by the record are not presumed to be true ( see Parola, Gross Marino, P.C. v Susskind , 43 AD3d 1020 , 1021-1022; accord Palazzolo v Herrick, Feinstein, LLP, 298 AD2d 372, 372).
Plaintiff's First Cause of Action Breach of Contract
Plaintiff's first cause of action against defendants alleges that the "acts and practices of the Defendants relating to the Agreement, jointly and severally, constitute a breach of contract, in that they involve BTB's failure to comply with the terms and conditions of said Agreement." The complaint further alleges that, as a direct and proximate result of BTB's failure to pay the outstanding balance owed from the TALG and its failure to comply with the obligations set forth in the Agreement, plaintiff claims to have been damaged to the extent of $215,000, plus interest, on its security deposit with MGM. Plaintiff also seeks the cost and expenses of defending the instant action, including attorney's fees.
Discussion
Defendants seek dismissal of plaintiffs' first cause of action against Jackson-Jordan, relying upon the well established principle that a party cannot be held liable to another in the absence of privity of contract between them. Indeed, only an entity that is a party to a contract may be liable for a breach of contract ( see Black Car Livery Ins., Inc. v H W Brokerage, Inc. , 28 AD3d 595 , 595; see also A V 425 LLC Contracting Co. v RFD 55th Street LLC, 15 Misc 3d 196, 204-208; see also Smith v Fitzsimmons, 180 AD2d 177, 180 ["privity or its equivalent remains the predicate for imposing liability for nonperformance of contractual obligations"]; HDR, Inc. v International Aircraft Parts, 257 AD2d 603, 604 ["Neither of these defendants was a party to the contract alleged to have been breached. As such, they cannot be bound by the contract"]).Moreover, the general rule is that an officer, director or other corporate agent acting expressly on behalf of a disclosed principal will not be personally liable for a breach of contract upon contracts executed by him or her, unless there is clear and explicit evidence of the agent's intention to be personally bound ( see Weinreb v Stinchfield , 19 AD3d 482 ; see also Savoy Record Co. v Cardinal Export Corp., 15 NY2d 1; Salzman Sign Co. v Beck, 10 NY2d 63; American Media Concepts, Inc. v Atkins Pictures, Inc., 179 AD2d 446, 448; Gottehrer v Viet-Hoa Co., 170 AD2d 648; MacDougal v Birdie Co., Inc., 20 AD2d 175, 176). In determining whether an individual defendant entered into a contract binding himself or herself personally, the context of the contract as a whole must be considered ( see 150 Broadway NY Assoc., L.P. v Bodner , 14 AD3d 1 , 5). Further, when an officer of a corporation signs a contract on behalf of a corporation and indicates the nature of his or her representative capacity, and exhibits no intention to assume personal liability for the corporation's breaches of that contract, he or she cannot be subject to personal liability ( see Metropolitan Switch Bd. Co., Inc. v Amici Assoc., Inc. , 20 AD3d 455 , 455-456).
Here, the Agreement explicitly states that it was entered into between BTB and TSA. ( compare McCarthy v Young , 57 AD3d 955 [where the Agreement does not clearly state anywhere therein that it was entered into between plaintiffs and the corporation]). Consequently, Jackson-Jordan was not a party to the Agreement and, therefore, no privity of contract was established between Jackson-Jordan and plaintiff. Furthermore, the Agreement explicitly sets forth the nature of her representative capacity; not only is she designated as the "duly authorized representative" of BTB, but she also signed her name above her title as BTB's President. In addition, the terms and conditions of the Agreement do not reflect any intent on the part of Jackson-Jordan to be personally bound. Thus, it is clear that Jackson-Jordan did not undertake to bind herself or undertake any personal contractual obligation with regard to the Agreement.
Jackson-Jordan also cannot be held liable merely because [she was a board member]" ( Lerman v Northeast Permanente Medical Group, P.C., 212 AD2d 672, 673). However, a corporate officer can be held personally liable for the corporation's breach of contract if the officer acted in bad faith on the corporation's behalf and the breach involved bad faith misrepresentations ( see Ledy v Wilson , 38 AD3d 214, 215; First Bank of Ams. v Motor Car Funding, 257 AD2d 287, 294). Considering the potential liability of a corporate officer, it is well settled that "[a] "director of a corporation is not personally liable to one who has contracted with the corporation on the theory of inducing a breach of contract, merely due to the fact that, while acting for the corporation, he [or she] has made decisions and taken steps that resulted in the corporation's promise being broken" ( Murtha v Yonkers Child Care Assn., 45 NY2d 913, 915, quoting Matter of Brookside Mills, 276 AD 357, 367). Indeed, "a corporate officer who is charged with inducing a breach of contract between the corporation and a third party is immune from liability if it appears that he is acting in good faith as an officer . . . [and did not commit] independent torts or predatory acts directed at another'" ( Murtha, 45 NY2d at 915, quoting Buckley v 112 Cent. Park South, 285 AD 331, 334).
Preliminarily, the court notes that plaintiff's first cause of action refers to all defendants in the collective, and does not specify any alleged tortious acts on the part of Jackson-Jordan, other than generalized averments of wrongdoing. Even though there are an abundant number of factual allegations in the complaint, the majority involve communications between BTB and plaintiff, rather than the individual defendants. In this regard, plaintiff's allegations against Jackson-Jordan are mostly conclusory in nature and relate to BTB's alleged breach of contract, rather than any independent tortious or predatory acts on the part of Jackson-Jordan. The complaint alleges that board members approved changes to the budget, but then later refused to pay plaintiff for services rendered. Plaintiff also argues that defendants' knowing refusal to pay constitutes "bad faith, thus breaching the contract." To the extent that plaintiff alleges that Jackson-Jordan induced the alleged breach of contract by refusing to pay BTB's outstanding balance, there is nothing in the record to indicate that Jackson-Jordan's actions amounted to anything more than an ordinary dispute between corporate officers over the financial obligations of contracting parties.
Accordingly, plaintiff fails to state a cause of action against Jackson-Jordan sufficient to withstand the instant motion. That branch of defendants' motion which seeks to dismiss the first cause of action for breach of contract as against Jackson-Jordan is granted.
Plaintiff's Second Cause of Action Breach of Fiduciary Duty
With respect to the second cause of action, plaintiff alleges that "the acts and practices of the Defendants relating to the Agreement, jointly and severally, constituted a breach of fiduciary duty under New York General Business Law § 359, in that they involve BTB's failure to comply with the terms and conditions of said Agreement."
Discussion
As an initial matter, the court notes that General Business Law § 359 , is entirely inapplicable to the instant facts. To the extent that plaintiff alleges a breach of fiduciary duty on the part of Jackson-Jordan, plaintiff has also failed to set forth the basis for its claim of a fiduciary relationship. It is firmly established that the directors of a corporation have the fiduciary obligation to act on behalf of the corporation in good faith and with reasonable care so as to protect and advance its interests ( Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530; Alpert v 28 Williams St. Corp., 63 NY2d 557; Strauss v 345 E. 73 Owners Corp., 181 AD2d 483, 487-488; Bernheim v 136 E. 64th St. Corp., 128 AD2d 434, 435). However, as plaintiff has set forth only conclusory averments of bad faith on the part of Jackson-Jordan, and it has failed to allege a duty running from Jackson-Jordan to the plaintiff that is independent of BTB's contractual obligation stemming from the Agreement, plaintiff fails to state a cause of action sufficient to withstand the instant motion to dismiss. Accordingly, that branch of defendants' motion which seeks to dismiss the second cause of action as against Jackson-Jordan is granted.
General Business Law § 359, under Article 23-A, "Stocks, Bonds, Securities," provides that "[u]pon any investigation before the attorney general or his deputy or other officer designated by him, or in any criminal proceeding before any court or grand jury, pursuant to or for a violation fo any of the provisions of this article, the attorney-general, his deputy, or other officer designated by him, or the court or grand jury, may confer immunity in accordance with the provisions of section 50.20 or 190.40 of the criminal procedure law."
Plaintiff's Third Cause of Action Fraud
Plaintiff's third cause of action alleges that the acts and practices of the Defendants relating to the Agreement, jointly and severally, constituted fraud, in that they involve BTB's fraudulent, unlawful, malicious, and deliberate conduct regarding its failure to comply with the terms and conditions of said Agreement. In addition to the above-cited damages, plaintiff seeks punitive damages against defendants, jointly and severally, in the amount of $1,000,000.
Discussion
In order to make a prima facie showing of fraud, a plaintiff must establish "a representation of fact, which is either untrue and known to be untrue or recklessly made, and which is offered to deceive the other party and to induce them to act upon it, causing injury" ( Jo Ann Homes at Bellmore v Dworetz, 25 NY2d 112, 119, citing 24 NY Jur, Fraud Deceit, § 14). Pursuant to CPLR 3016(b), if a cause of action is based upon fraud, the circumstances constituting the wrong must be stated in detail ( see generally LaSalle Natl. Bank v Ernst Young, 285 AD2d 101, 109). However, "CPLR 3016 requires only that a claim of fraud be pleaded in sufficient detail to give adequate notice, particularly in situations where it may be impossible to state in detail the circumstances constituting the fraud, inasmuch as the surrounding circumstances are sometimes peculiarly within the knowledge of the party against whom the claim is being asserted" ( DaPuzzo v Reznick Fedder Silverman , 14 AD3d 302 , 302-303). Nonetheless, CPLR 3016 does not sanction the use of vague and conclusory claims by plaintiffs with respect to an alleged fraud; rather, even where some of the surrounding circumstances may be peculiarly within the defendants' knowledge, a plaintiff must still set forth his or her claim in sufficient detail to clearly inform a defendant with respect to the incidents complained of in the fraud action ( see P.T. Bank Central Asia v ABN AMRO Bank, N.V., 301 AD2d 373, 377). When a plaintiff confronted with a defendant's motion to dismiss fails to come forth with any facts or circumstances constituting the claimed fraud as required by law, dismissal of the claim is appropriate ( see e.g. Greschler v Greschler, 51 NY2d 368, 375).
Although a party not in privity in contract with a plaintiff may be held liable for his or her individual acts of fraud ( see Cherry v Resource Am., 285 AD2d 989, 991; LaBarte v Seneca Resources Corp., 285 AD2d 974, 976), and "a corporate officer may be held personally liable for committing fraud on the corporation's behalf" ( First Bank of Ams., 257 AD2d at 294; see also I. Towjer, Inc. v Tarran, 236 AD2d 518, 519), it is also well settled that a cause of action for fraud does not arise when the only fraud charged relates to a breach of contract ( see e.g. Breco Envtl. Contrs. v Town of Smithtown, 307 AD2d 330, 332; Melissakis v Proto Constr. Dev., 294 AD2d 342, 343; Tsilogiannis v 53-11 90th St. Assocs., 293 AD2d 468, 469); Rubinberg v Correia Designs, 262 AD2d 474, 475; Non-Linear Trading Co. v Braddis Assocs., 243 AD2d 107, 118).
With respect to the cause of action sounding in fraud, plaintiff fails to allege with particularity each specific element of fraud as mandated by CPLR 3016 (b), namely, misrepresentation of a material fact, scienter, justifiable reliance, and injury ( see generally Sirohi v Lee, 222 AD2d 222, 222; Stern v Consumer Equities Assocs., 160 AD2d 993, 994). The facts as alleged by plaintiff are insufficient to state a cause of action, since plaintiff's claims are pleaded in general terms. More specifically, plaintiff does not provide any details with regard to the alleged misrepresentation made to it; it does not identify the party making the alleged misrepresentation or the circumstances under which the statement was made; and it fails to allege any basis upon which to conclude that the person who made the alleged representation had knowledge that it was false ( see generally Barclay Arms v Barclay Arms Assoc., 74 NY2d 644, 646-647; Cohen v Houseconnect Realty, 289 AD2d 277, 278). Plaintiff is obligated to set forth its claims in sufficient detail to provide notice to Jackson-Jordan with respect to the incidents complained of in the fraud action ( see generally P.T. Bank Central Asia, NY Branch v ABN AMRO Bank N.V., 301 AD2d 377, 377). Here, the only "incidents" identified with respect to such general averments of fraudulent conduct and wrongdoing are Jackson-Jordan's presence at conference calls where the budget was discussed, her alleged refusal to pay BTB's shortfall, and her apparent decision not to purchase a table at the fund-raiser. Such vague and conclusory allegations of wrongdoing, however, are insufficient, even under the applicable liberal pleading standards, to provide Jackson-Jordan with "notice of the transactions or occurrences to be proved or to support the material elements of any cognizable causes of action" ( Matter of Reden, 133 AD2d at 694). With respect to the VIP table, plaintiff does not allege that Jackson-Jordan herself represented that she would not pay for the table, but, rather, that "BTB" stated that Jackson-Jordan had "changed her mind" about paying for the table. Furthermore, even though the alleged fraud of Jackson-Jordan is not stated with particularity, to the extent that she may have personally represented that she would pay for the table, this act merely relates to the breach of contract, since any non-payment on her part simply further obligates BTB by increasing the shortfall.
As a result, that branch of defendants' motion which seeks to dismiss the third cause of action as against Jackson-Jordan for failure to state a cause of action is granted.
Plaintiff's Fourth Cause of Action
General Business Law § 349 In its fourth cause of action, plaintiff contends that the acts and practices of defendants violated General Business Law § 349, in that they involved the "use or employment of a representation or statement which is false, where the person who made such representation or statement (i) knew the truth; or (ii) with reasonable effort could have known the truth; or (iii) made no reasonable effort to ascertain the truth; or (iv) did not have knowledge concerning the representation made, and where such acts or practices were engaged in to induce or promote the issuance, distribution, exchange, sale, negotiation or purchase within or from a company within the State of New York."Discussion
Initially, the court notes that the above stated elements of the fourth cause of action are not set forth in the text of General Business Law § 349. General Business Law § 349 (a) provides consumer protection by declaring unlawful "deceptive acts and practices in the conduct of any business, trade, or commerce or in the furnishing of any service in this state." In order to state a claim under General Business Law § 349, the plaintiff must allege not only that defendant has engaged in an act or practice that is deceptive or misleading in a material way, and that the plaintiff suffered detriment or injury thereby, but also that the alleged deceptive business practices were aimed at the consuming public at large ( see Small v Lorilland Tobacco Co., 94 NY2d 43, 55; Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, N.A., 85 NY2d 20, 25). Thus, it is a requisite to stating a cause of action under this section that the conduct at issue must have a broad impact on consumers at large; contract disputes that are unique, private in nature or involve a so-called "single shot" transaction do not fall within the statute's ambit ( see Oswego Laborers' Pension Fund, 85 NY2d at 25; Mendelkow v Child Family Servs. Of Erie County, 49 AD3d 13136, 1318 [2008]; Kantrowitz v Allstate Indem. Co. , 48 AD3d 753, 754-755; Zowahir v berkshire Life Ins. Co., 22 AD3d 841, 842).
In this case, plaintiff's claims against Jackson-Jordan merely involve a private contractual dispute and a "single-shot" transaction. Consequently, General Business Law § 349 is inapplicable herein, and dismissal of plaintiff's fourth cause of action is warranted. Moreover, to the extent that the fourth cause of action alleges misrepresentations on the part of Jackson-Jordan, this cause of action is duplicative of plaintiff's fraud and breach of contract claims and must be dismissed.
Accordingly, that branch of defendant's motion which seeks to dismiss plaintiff's fourth cause of action against Jackson-Jordan for failure to state a cause of action is granted.
Plaintiff's Fifth Cause of Action
Unjust Enrichment
Finally, plaintiff's fifth cause of action alleges that the acts and practices of defendants relating to the Agreement, jointly and severally, constituted unjust enrichment, in that they involve BTB's failure to comply with the terms and conditions of said Agreement.
Discussion
"To state a cause of action for unjust enrichment, a plaintiff must allege that it conferred a benefit upon the defendant, and that the defendant will obtain such benefit without adequately compensating plaintiff therefor" ( Smith v Chase Manhattan Bank, USA, 293 AD2d 598, 600, quoting Nakamura v Fujii, 253 AD2d 387, 390). It is well established, though, that the existence a valid and legally enforceable contract between the parties with respect to the same subject matter precludes a cause of action for unjust enrichment ( see generally R.I. Is. House, LLC v North Town Phase II Houses, Inc. , 51 AD3d 890 , 896; Cornhusker Farms v Hunts Point Coop. Mkt. , 2 AD3d 201 , 206).
If, as plaintiff asserts, it has fully performed under the subject Agreement between BTB and and plaintiff, plaintiff is precluded from seeking quasi-contractual remedies such as damages under a theory of quantum meruit. In Clark-Fitzpatrick, Inc. v Long Is. R.R. Co. ( 70 NY2d 382), the Court of Appeals stated as follows:
"The existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter. A quasi contract' only applies in the absence of an express agreement, and is not really a contract at all, but rather a legal obligation imposed in order to prevent a party's unjust enrichment. . . . 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" ( Id. at 388-389 [citations omitted]; see also Goldstein v CIBC World Mkts. Corp. , 6 AD3d 295 , 296 ["A claim for unjust enrichment, or quasi contract, may not be maintained where a contract exists between the parties covering the same subject matter"]; Scavenger, Inc. v GT Interactive Software Corp., 289 AD2d 58, 59 ["since the matters here in dispute are governed by an express contract, defendant's counterclaim for unjust enrichment was properly found untenable"]; Sheiffer v Shenkman Capital Mgt., 291 AD2d 295, 295 ["the existence of a valid and enforceable written contract governing the disputed subject matter precludes plaintiffs from recovering in quantum meruit"]).
This prohibition against quasi-contractual claims where a written contract exists applies not only to the parties that are in privity of contract, but also to noncontracting parties as well ( Feigen v Advance Capital Mgt. Corp., 150 AD2d 281, 283, appeal dismissed in part and denied in part 74 NY2d 874 ["a nonsignatory to a contract cannot be held liable where there is an express contract covering the same subject matter"]; see also Bellino Schwartz Padob Adv. v Solaris Mktg. Group, 222 AD2d 313, 313 [existence of an express contract between defendant and plaintiff governing the subject matter of the plaintiff's claims also bars any quasi-contractual claims against defendant third-party nonsignatory to ostensibly valid and enforceable contract]).
Plaintiff's cause of action for unjust enrichment is a quasi-contract claim and is, therefore, not viable where, as here, it is undisputed that there is a contract covering the same subject matter i.e. the alleged non-payment of outstanding expenses ( see Apfel v Prudential-Bache Secs., 81 NY2d 470, 479; Clark-Fitzpatrick, Inc., v Long Is. R.R., 70 NY2d 382, 388-389; Lum v New Century Mortgage Corp. , 19 AD3d 558 , 559-560; Neos v Lacey , 2 AD3d 812 , 814). Accordingly, that branch of defendants' motion which seeks to dismiss the fifth cause of action as against Jackson-Jordan for failure to state a cause of action is granted.
Conclusion
As a result, defendants' motion to dismiss the complaint as against BTB, Jackson-Jordan, Smith, Coleman, Richmond and Demps is granted in its entirety.
The foregoing constitutes the decision, order and judgment of the court.