Opinion
988 CA 21-01708
03-24-2023
UNIVERSITY HILL REALTY, LTD., Plaintiff-Appellant, v. Ronda AKL and Rosette Aksterowicz, as Trustees of the Milad Hatem Irrevocable Trust Under Agreement Dated January 14, 2015, and the Milad Hatem Irrevocable Trust Under Agreement Dated January 14, 2015, Defendants-Respondents.
HANCOCK & ESTABROOK, LLP, SYRACUSE (ALAN J. PIERCE OF COUNSEL), FOR PLAINTIFF-APPELLANT. ABRAHAM LAW, PLLC, SYRACUSE (IMAN ABRAHAM OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
HANCOCK & ESTABROOK, LLP, SYRACUSE (ALAN J. PIERCE OF COUNSEL), FOR PLAINTIFF-APPELLANT.
ABRAHAM LAW, PLLC, SYRACUSE (IMAN ABRAHAM OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: WHALEN, P.J., SMITH, CURRAN, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.
Memorandum: Plaintiff commenced this breach of contract and unjust enrichment action, alleging that it is entitled to a real estate broker's commission based on, inter alia, an implied extension of a brokerage contract between it and defendants. Plaintiff appeals from an order granting defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7). We agree with plaintiff that Supreme Court erred in granting the motion, and we therefore reverse.
"When a court rules on a CPLR 3211 motion to dismiss, it ‘must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord [the] plaintiff[ ] the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory’ " ( Whitebox Concentrated Convertible Arbitrage Partners, L.P. v. Superior Well Servs., Inc. , 20 N.Y.3d 59, 63, 956 N.Y.S.2d 439, 980 N.E.2d 487 [2012] ; see Leon v. Martinez , 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ).
We conclude that the complaint alleges a cognizable claim for breach of implied contract. "Whether an implied-in-fact contract was formed and, if so, the extent of its terms, involves factual issues regarding the intent of the parties and the surrounding circumstances" ( Arell's Fine Jewelers, Inc. v. Honeywell, Inc. , 147 A.D.2d 922, 923, 537 N.Y.S.2d 365 [4th Dept. 1989] ; see Rocky Point Props. , Inc. v. Sear-Brown Group , 295 A.D.2d 911, 912, 744 N.Y.S.2d 269 [4th Dept. 2002] ). Contrary to the court's determination, whether plaintiff "can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" ( EBC I, Inc. v. Goldman, Sachs & Co. , 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 [2005] ; see Cortlandt St. Recovery Corp. v. Bonderman , 31 N.Y.3d 30, 38, 73 N.Y.S.3d 95, 96 N.E.3d 191 [2018] ) and, here, plaintiff's allegations sufficiently state a cause of action for breach of an implied contract arising from an implicit agreement to extend the brokerage contract (see Herzog v. New York City Dist. Council of Carpenters Pension Fund , 141 A.D.3d 497, 498, 36 N.Y.S.3d 128 [1st Dept. 2016] ; see generally Dulberg v. Mock , 1 N.Y.2d 54, 57, 150 N.Y.S.2d 180, 133 N.E.2d 695 [1956] ). Similarly, the complaint sufficiently alleges the elements of a claim for unjust enrichment (see generally Georgia Malone & Co., Inc. v. Rieder , 19 N.Y.3d 511, 516, 950 N.Y.S.2d 333, 973 N.E.2d 743 [2012] ; Mandarin Trading Ltd. v. Wildenstein , 16 N.Y.3d 173, 182, 919 N.Y.S.2d 465, 944 N.E.2d 1104 [2011] ; IDT Corp. v. Morgan Stanley Dean Witter & Co. , 12 N.Y.3d 132, 142, 879 N.Y.S.2d 355, 907 N.E.2d 268 [2009], rearg denied 12 N.Y.3d 889, 883 N.Y.S.2d 793, 911 N.E.2d 855 [2009] ), and thus the court erred in dismissing that cause of action.
The court also erred insofar as it granted the motion with respect to the cause of action for breach of implied contract based on documentary evidence. "A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the [plaintiff's] claim[s]" ( Baumann Realtors, Inc. v. First Columbia Century-30, LLC , 113 A.D.3d 1091, 1092, 978 N.Y.S.2d 563 [4th Dept. 2014] [internal quotation marks omitted]). Although contracts are among the types of documentary evidence that may be considered for purposes of CPLR 3211 (a) (1) (see Rider v. Rainbow Mobile Home Park, LLP , 192 A.D.3d 1561, 1563, 145 N.Y.S.3d 246 [4th Dept. 2021] ), we conclude that the contract submitted by defendants in support of their motion failed to "utterly refute ... plaintiff's allegations [that the contract was implicitly extended] or conclusively establish a defense as a matter of law" ( Lots 4 Less Stores, Inc. v. Integrated Props., Inc. , 152 A.D.3d 1181, 1183, 59 N.Y.S.3d 628 [4th Dept. 2017] [internal quotation marks omitted]).