Opinion
No. 202/2016.
07-01-2016
Elliott ZASLANSKY d/b/a EZ Associates, Plaintiff, v. ZAKKAYA LLC & Mary McHugh, Defendants.
Kenneth S. Rones, Esq., The Law Firm of William G. Sayegh, P.C., Carmel, Attorneys for Plaintiff. Richard J. O'Keeffe, Esq., Law Office of William J. Florence, Jr., Esq., Peekskill, Attorneys for Defendants.
Kenneth S. Rones, Esq., The Law Firm of William G. Sayegh, P.C., Carmel, Attorneys for Plaintiff.
Richard J. O'Keeffe, Esq., Law Office of William J. Florence, Jr., Esq., Peekskill, Attorneys for Defendants.
PAUL I. MARX, J.
The following papers numbered 1 to 10 were read on: (1) Plaintiff's motion for a preliminary injunction, brought by Order to Show Cause and (2) Defendants' motion to dismiss Plaintiff's complaint pursuant to CPLR § 3211 :
| Order to Show Cause/Affidavit of Elliott Zaslansky/Affirmation of Kenneth S. Rones, Esq./Exhibits A to E | 1–3 |
| Notice of Motion/First Affirmation1of Mary McHugh/Second Affirmation of Mary McHugh/Exhibits A to C | 4–6 |
Upon reading the foregoing papers, it is ORDERED that: (1) Plaintiff's motion is denied and (2) Defendants' motion is granted in part and denied in part.
BACKGROUND
On February 4, 2016, Plaintiff, Elliott Zaslansky d/b/a EZ Associates (“Plaintiff”), filed a verified complaint against Defendants, Zakkaya, LLC and Mary McHugh (“Defendants”), alleging causes of action for declaratory judgment and injunctive relief, unjust enrichment, breach of contract, fraudulent inducement, equitable estoppel and quantum merit (the “Complaint”).
The Complaint alleges that the parties entered into a Retail Booth License Agreement (“Booth Agreement”) on April 18, 2015 (Compl.¶ 6). Plaintiff alleges that pursuant to the parties' understanding and agreement, he and Robert Ginsberg constructed twelve booths on the premises located at 103 Main Street, Cold Spring, N.Y. 10516 (the “Premises”), where none had previously existed (Compl.¶ 9–13). Plaintiff asserts that the value of his work, labor and services in connection with the construction of the booths and obtaining approval for them from the Village of Cold Spring Building Department amounts to approximately $35,000.00 (Compl.¶ 14).
Copies of the Booth Agreement provided by the parties are dated May 15, 2015.
According to Plaintiff, the Booth Agreement provided that Plaintiff would occupy booths No.1, # 2, # 3 and # 4 (the “Booths”) from May 15, 2015 to May 14, 2017 (Compl.¶ 15). Plaintiff alleges that he paid Defendants the security deposit and other fees as required by the Booth Agreement (Compl.¶ 17). However, Defendants did not allow Plaintiff to occupy the Booths until August of 2015 (Compl.¶ 16).
On or around May 15, 2015, the parties entered into a Manager's Agreement (Compl.¶ 18). Plaintiff asserts that the Manager's Agreement authorized him to obtain licensees for booths # 5, # 6, # 7, # 8, # 9, # 10 and # 11 (Compl.¶ 19). Plaintiff also alleges that the Manager's Agreement provides that Plaintiff would be paid thirty-five percent of the license fees received by him as Manager (Compl.¶ 22). Further, Plaintiff asserts that the Manager's Agreement confirmed the parties' agreement regarding Plaintiff's construction of the booths (Compl.¶ 21).
Plaintiff asserts that he constructed the twelve booths relying upon the Agreements, in the good faith belief and with reasonable expectation that he would occupy and earn income from the Booths until May 2017 and earn commissions on the other booths until May 2017 (Compl.¶ 23–26).On or around December 27, 2015, Defendants notified Plaintiff to vacate the Booths on or before February 26, 2016 and that the Manager's Agreement was terminated (Compl.¶ 27).
On February 4, 2016, Plaintiff filed an Order to Show Cause seeking a preliminary injunction to prevent his eviction and a temporary restraining order for immediate relief. On February 5, 2016, the Court signed the Order to Show Cause, declining to issue a temporary restraining order and directing appearances by the parties on February 9, 2016. On February 9, 2016, Plaintiff appeared before the Court. Defendants failed to appear or otherwise respond. On February 10, 2016, the Court issued a temporary restraining order, ordering that Defendants not remove Plaintiff or his property from the Premises or otherwise interfere with or impede his use of the Premises pending disposition of the motion for a preliminary injunction.
DISCUSSION:
The Court will entertain Defendants' motion to dismiss the complaint prior to considering Plaintiff's motion for a preliminary injunction, as dismissal of one or more of Plaintiff's causes of action may affect Plaintiff's arguments for a preliminary injunction, which requires an assessment of the likelihood of success on his claims.
Defendants' Motion to Dismiss the Complaint:
Plaintiff's First Cause of Action—Declaratory Judgment and Injunctive Relief:
As his first cause of action, Plaintiff seeks a judgment declaring that the Booth Agreement is not a license agreement, but a lease, to which Article 7 of the Real Property Actions and Proceedings Law is applicable. Plaintiff also seeks the injunctive relief he has obtained to be made permanent.
Defendants argue that Plaintiff's first cause of action should be dismissed pursuant to CPLR § 3211(a)(1), because the Booth Agreement is a license. Defendants argue that it is expressly stated in its title and throughout the Booth Agreement that it is a license. Defendants point to paragraph 2 of the Agreement, which states in relevant part: “This license is not intended to create a lease or any other interest in real property in favor of the Licensee, but merely creates a license revocable at will by Licensor.” (Affirmation of McHugh, ¶ 5). Defendants also point to paragraph 33 of the Agreement, which states in relevant part: “F. Notwithstanding anything to the contrary contained herein, it is expressly agreed and understood that: (i) this agreement is a license and not a lease; ... (viii) Licensee specifically covenants and agrees, for Licensor's benefit and as a material condition to this agreement that: (a) Neither this License nor any of Licensee's rights in connection herewith shall constitute a lease, whether of the Booth[s] or otherwise; (b) Licensee shall not bring any action against Licensor or interpose any defense against Licensor based upon the theory that this License constitutes a lease” (Affirmation of McHugh, ¶ 6). Defendants also refer to language in the Agreement to argue that the Agreement is a license, that Defendants do not have an obligation to seek a court order or provide due process before ejecting Plaintiff and his property from the premises.
Defendants contend that the Booth Agreement is clear and unambiguous and constitutes the entire agreement between the parties. As such, parole evidence is not admissible and the intent of the parties must be determined solely by reference to the Booth Agreement.
Plaintiff argues that the intent of the parties, not the language used in the agreement or the title of the agreement, is crucial in determining whether the Booth Agreement is a lease. Plaintiff asserts that this determination should not be made solely on the basis of the Booth Agreement. In fact, Plaintiff asserts that the Booth Agreement should be viewed together with the Manager's Agreement. He contends that both agreements established a landlord-tenant relationship between the parties. Plaintiff argues that he had exclusive dominion and control or exclusive possession and control over a portion of the premises, as evidenced by the fact that he was provided with keys to the Booths and to the main entrance of the Premises. Plaintiff also alleges that his use and occupancy of the four booths did not depend on Defendants.
Relying on Greenwood Lake & Port Jervis R.R. Co. v. New York & Greenwood Lake R.R. Co., 134 N.Y. 435, 440 [1892], Plaintiff also argues that a license “may become irrevocable through the expenditure of money by the licensee.” (Affirmation of Kenneth S. Rones in Opposition and in Reply, ¶ 9).
Defendants argue that Greenwood Lake, supra, cited by Plaintiff, establishes that “a contract for the use of property depends on the rights and obligations granted therein.” (Defendants' Memorandum of Law, p. 6). Defendants argue that the Agreement is not a lease because it expressly provides that it is nonexclusive. Defendants refer to paragraphs 2, 13.A, 13.B, and 24 in support. Further, Defendants contend that the Plaintiff's use of the Premises is limited by paragraphs 1 and 7 of the Agreement and Plaintiff's access is likewise limited by paragraph 13 of the Agreement.
Defendants further argue that the Agreement is not a lease because it is revocable. Relying on Nemmer Furniture Co. v. Select Furniture Co., 25 Misc.2d 895 [Sup Ct, Erie County, 1960], Defendants argue that even if there is no explicit right of revocation, “[a] license may be revoked by the licensor, though consideration has been paid for it, though intended to be continuing, and though money has been expended in reliance on it.” Id. at 899.
On a motion to dismiss a complaint pursuant to CPLR § 3211(a)(1), the documentary evidence relied on by the defendant must conclusively establish a defense as a matter of law. Palmieri v. Biggiani, 108 AD3d 604 [2nd Dept 2013] (citing Ofman v. Katz, 89 AD3d 909, 910 [2nd Dept 2011] ). The documentary evidence must resolve all factual issues as a matter of law. Id. (citing Martin v. New York Hosp. Med. Ctr. of Queens, 34 AD3d 650, 650 [2nd Dept 2006] ). Whether the plaintiff will later be able to prevail on his/her claims plays no part in the determination of a pre-discovery motion to dismiss. Id. (citing Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2nd Dept 2006] ).
“To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity'.” Pasquaretto v. Long Island University, 106 AD3d 794 [2nd Dept 2013] (citing Fontanetta v. John Doe 1, 73 AD3d 78, 86 [2nd Dept 2010] ). “From the cases that exist, it is clear that judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable,' would qualify as documentary evidence' in the proper case”. Fontanetta, supra, at 84.
Here, Defendants rely on the Booth Agreement as documentary evidence to dismiss Plaintiff's first cause of action pursuant to CPLR § 3211(a)(1). It is undisputed that the Booth Agreement is a contract setting forth the rights and obligations of the parties in relation to the booths on the Premises. Accordingly, the Booth Agreement qualifies as documentary evidence pursuant to CPLR § 3211(a)(1).
A lease grants “the exclusive right to use and occupy” land. Union Square Park Community Coalition, Inc. v. New York City Department of Parks and Recreation, et al, 22 NY3d 648 [2014] (citing Miller v. City of New York, 15 N.Y.2d 34, 38 [1964] ). A license, however, is “a revocable privilege given to one, without interest in the lands of another, to do one or more acts of a temporary nature upon such lands'.” Id. (citing Trustees of Town of Southampton v. Jessup, 162 N.Y. 122, 126 [1900] ). “Whether a given agreement is a lease or a license depends upon the parties' intentions” Nextel of New York v. Time Management Corp., 297 A.D.2d 282 [2nd Dept 2002]. “Whether a contract confers a tenancy or a license is a question of law.” NY Prac, Landlord and Tenant Practice in New York § 3:25 [Dec.2015].
“Generally, contracts permitting a party to render services within an enterprise conducted on premises owned or operated by another, who has supervisory power over the method of rendition of the services, are construed to be licenses'. That a writing refers to itself as a license or lease is not determinative; rather, the true nature of the transaction must be gleaned from the rights and obligations set forth therein. Finally, a broad termination clause reserving to the grantor the right to cancel whenever it decides in good faith to do so' is strongly indicative of a license as opposed to a lease”. Union Square Park Community Coalition, Inc., supra, at 656 (citing Miller, 15 N.Y.2d at 38 ).
The Booth Agreement, entitled the “Retail Booth License Agreement”, recites multiple times throughout that it is a license, not a lease (Booth Agreement, ¶ 2, 33.F), and repeatedly refers to Plaintiff as the Licensee and Defendant Zakkaya, LLC as the Licensor. More importantly, the Booth Agreement embodies many of the characteristics of a license. First, the Booth Agreement sets forth in detail Defendants' numerous supervisory powers over Plaintiff's business operation on the Premises. Paragraph 1 of the Agreement lists the products that may be sold in the Booths. Paragraph 7 contains three paragraphs restricting Plaintiff's use of the Booths, stating, inter alia, that Plaintiff may not “(5) place any sign, flag antenna or the like outside the Booth without Licensor's express approval”, “(9) permit any individual Booth to be occupied at any one time by more than 10 persons, including customers”, or “(10) serve food or beverages in the Booth (with the understanding that candy will be sold in one Booth)” (Booth Agreement, ¶ 7). Paragraph 9 states that further rules and regulations set forth in Schedule “A” must be abided by Plaintiff.
Plaintiff's use of the Booths is heavily restricted by the “Center Rules and Regulations” attached to the Booth Agreement as Schedule “A”. For example, the Rules state that “Licensee will abide by Licensor's directives regarding security, keys, cleanliness and good order” (Schedule “A”, ¶ 1); “The Center common area shall not be used by Licensee except for egress and ingress and shall never be obstructed by Licensee” (Schedule “A”, ¶ 3); “No advertisement or identifying sign, other than those provided or approved by Licensor, shall be inscribed, painted, affixed or otherwise installed anywhere in the Center, including on the Booth, or on the building in which the Booth is located” (Schedule “A”, ¶ 4); “Licensee shall not bring into the Booth any large machinery, amplification equipment (apart from amplification equipment necessary for selling musical instruments), heating equipment, stove, cooking equipment, or vending or coin operated machine ...” (Schedule “A”, ¶ 5); “There shall be no cooking or service of food or beverage ...” (Schedule “A”, ¶ 6); “Licensee shall, before leaving the Booth unattended for more than 8 consecutive hours, shut of[f] all lights and electrical apparatus in the Booth, and close and secure the Booth” (Schedule “A”, ¶ 7); and that “Licensee will not photograph or make visual representations by any means of the interior of the Center without the written consent of Licensor” (Schedule “A”, ¶ 11).
Paragraph 13, entitled “Access”, states that Plaintiff may have “LIMITED ACCESS” to the Booth and the Premises between 7:00 am and 10:00 pm, that access to the Booths and the Premises will be permitted by use of keys that Defendants provide, that Defendants “shall retain exclusive control over and shall retain exclusive capability to re-key.” (Booth Agreement, ¶ 13.A). The paragraph goes on further to state that Defendants “shall have the right to enter the Booth at any time.” (Booth Agreement, ¶ 13.B).
Paragraph 24, entitled “Relocation”, provides that Defendants have the right to relocate Plaintiff to another booth on the Premises, upon written notice (Booth Agreement, ¶ 24). See Karp v. Federated Dept. Stores, Inc., 301 A.D.2d 574, 575 [2nd Dept 2003] (holding that the agreement between the parties was a license because defendant had the right to relocate or renovate plaintiff's space at any time with reasonable notice and plaintiff could operate its business only during defendant's business hours).
Moreover, the Booth Agreement contains a broad termination clause, which states that “[t]his license is not intended to create a lease or any other interest in real property in favor of the Licensee, but merely creates a license revocable at will by Licensor. Licensor's right to revoke this license is not subject to or contingent upon whether Licensee is in default of the terms of this Agreement.” (Booth Agreement, § 2).
Accordingly, the Booth Agreement does not grant to Plaintiff exclusive use and control of the Booths, and cannot be viewed as a lease.
In light of the fact that the Booth Agreement is clear and unambiguous on its face, the Court need not consider extrinsic or parole evidence. W.W.W. Associates, Inc. v. Giancontieri, 77 N.Y.2d 157, 163 [1990] (“It is well settled that extrinsic and parol evidence is not admissible to create an ambiguity in a written agreement which is complete and clear and unambiguous upon its face' .”); Bethlehem Steel Co. v. Turner Const. Co., 2 N.Y.2d 456, 460 [1957] (“Mere assertion by one that contract language means something to him, where it is otherwise clear, unequivocal and understandable when read in connection with the whole contract, is not in and of itself enough to raise a triable issue of fact. It has long been the rule that when a contract is clear in and of itself, circumstances, extrinsic to the document may not be considered, and that where the intention of the parties may be gathered from the four corners of the instrument, interpretation of the contract is a question of law and no trial is necessary to determine the legal effect of the contract”).
Even if the Court were to consider the Manager's Agreement as Plaintiff urges, the Manager's Agreement emphasizes Defendants' control over the Premises. The Manager's Agreement states that Plaintiff agrees to construct booths on the Premises with approval from Defendants, with materials supplied by Defendants, that Plaintiff agrees to obtain licensees that Defendants will find satisfactory and that Plaintiff will manage the “day-to-day operations” on the Premises to ensure that the other licensees abide by the terms of their license agreement with Defendants.
Plaintiff's argument that there is a landlord-tenant relationship between the parties because he was provided with keys to the Booths and to the main entrance to the Premises is without merit. It is axiomatic that Plaintiff needs keys to enter his Booths and he cannot enter his Booths without being able to enter the Premises. Plaintiff's mere possession of keys to the Premises, without more, does not render the Booth Agreement a lease.
Accordingly, Defendants' motion to dismiss the first cause of action is granted.
Plaintiff's Second Cause of Action—Unjust Enrichment:
Plaintiff alleges that Defendants have been unjustly enriched in the amount of $35,000.00 as a result of Plaintiff's “work, labor and services” (Compl., ¶ 35).
Defendants summarily argue that this cause of action should be dismissed pursuant to CPLR § 3211(a)(1) because Plaintiff has received compensation pursuant to the Manager's Agreement (Affirmation of Mary McHugh, ¶ 11), which sets forth the parties' rights and obligations regarding compensation.
As stated above, to dismiss a cause of action pursuant to CPLR § 3211(a)(1), “the documentary evidence relied on by the defendant must conclusively establish a defense as a matter of law”, and “resolve all factual issues as a matter of law”. Palmieri, supra.
The existence of a Manager's Agreement permitting Plaintiff to be compensated for his construction work does not conclusively resolve as a matter of law whether Plaintiff was compensated for his work and whether Defendants have been unjustly enriched.
Accordingly, Defendants' motion to dismiss the second cause of action in unjust enrichment is denied.
Plaintiff's Third Cause of Action—Breach of Contract:
Plaintiff alleges that Defendants breached the Booth Agreement and the Manager's Agreement, which were “intended to confer upon Plaintiff the right to remain at 103 Main Street, Cold Spring, New York in order to conduct business thereat as well as to earn commissions” (Compl, ¶ 38).
Defendants allege that their termination of the Booth Agreement was in accordance with paragraph 3 of the Agreement, because they notified Plaintiff of the termination on December 27, 2015 (Affirmation of Mary McHugh, ¶ 15). Defendants also point to paragraph 2 of the Agreement, which states that it is a “license revocable at will” (Affirmation of Mary McHugh, ¶ 14).
Defendants also argue that this cause of action should be dismissed pursuant to CPLR § 3211(a)(1) because Plaintiff has not alleged a breach and the rights and obligations of the parties are set forth in the Booth Agreement and Manager's Agreement.
The existence of the Booth Agreement and Manager's Agreement does not conclusively resolve as a matter of law whether Defendants breached those agreements. Plaintiff has alleged the elements of a cause of action for breach of contract.
Accordingly, Defendants' motion to dismiss the third cause of action in breach of contract is denied.
Plaintiff's Fourth Cause of Action—Fraudulent Inducement:
Plaintiff alleges that Defendant McHugh made false representations of material fact to him, known by her to be untrue, to induce him to perform construction on the Premises, and that he justifiably relied upon those representations, which resulted in damages. Plaintiff alleges that his affidavit in support of the Order to Show Cause sets forth facts supporting this cause of action.
Defendants argue that this cause of action should be dismissed pursuant to CPLR § 3013 and § 3016(b), because Plaintiff has not pled any particular facts regarding the alleged misrepresentation. Defendants contend that it is not enough for facts supporting the cause of action to be in an affidavit, and that the facts must be set forth in the complaint.
Defendants also argue that an allegation of intent not to perform under a contract is not sufficient to state a cause of action in fraud.
CPLR § 3016(b) provides that: “Where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail”. CPLR § 3016(b). “The purpose of section 3016(b)'s pleading requirement is to inform a defendant with respect to the incidents complained of,' thus, [w]e have cautioned that section 3016(b) should not be so strictly interpreted as to prevent an otherwise valid cause of action in situations where it may be impossible to state in detail the circumstances constituting a fraud'.” Sargiss v. Magarelli, 12 NY3d 527, 530 [2009] (citing Pludeman v. Northern Leasing Sys., Inc., 10 NY3d 486, 491 [2008] ). “Thus, where concrete facts are peculiarly within the knowledge of the party' charged with the fraud, it would work a potentially unnecessary injustice to dismiss a case at an early stage where any pleading deficiency might be cured later in the proceedings”. Pludeman, supra, at 491. “What is [c]ritical to a fraud claim is that a complaint allege the basic facts to establish the elements of the cause of action,' and although under CPLR 3016(b) the complaint must sufficiently detail the allegedly fraudulent conduct, that requirement should not be confused with unassailable proof of fraud'.” Id. at 530–31 (citing Pludeman, supra, at 492). “Necessarily, then, section 3016(b) may be met when the facts are sufficient to permit a reasonable inference of the alleged conduct'.” Id. at 531 (citing Pludeman, supra, at 492).
“On a CPLR 3211 motion to dismiss, a court may consider affidavits to remedy pleading problems.” Id. (citing Leon v. Martinez, 84 N.Y.2d 83, 88 [1994] ). However, “vague expressions of hope and future expectation',” mere opinion and puffery',” and conclusory allegations of fraud are not sufficient to satisfy the pleading requirements of CPLR § 3016(b). High Tides, LLC v. DeMichele, 88 AD3d 954, 958 [2nd Dept 2011] ; Penna v. Caratozzolo, 131 A.D.2d 738 [2nd Dept 1987].
The complaint does not allege what misrepresentations were made by Defendant McHugh to induce him to perform construction on the Premises. Further, no facts are alleged which would lead to a reasonable inference of fraudulent inducement on the part of Defendant McHugh.
Accordingly, Defendants' motion to dismiss the fourth cause of action in fraudulent inducement is granted.
Plaintiff's Fifth Cause of Action—Equitable Estoppel:
Plaintiff alleges that Defendant McHugh “engaged in conduct which included false representations and/or concealment of material facts with the intent that Plaintiff would rely and act upon such conduct and at the time of such conduct the Defendant.” (Complaint, ¶ 44).
Plaintiff argues that it would be unjust and inequitable to allow Defendants to terminate the Booth Agreement and the Manager's Agreement when Plaintiff has expended much time, energy and money in constructing the booths on the Premises.
Defendants summarily argue that this cause of action should be dismissed pursuant to CPLR § 3013 and § 3016(b). Defendants also argue that it should be dismissed pursuant to CPLR § 3211(a)(1) because the rights and obligations of the parties are set forth in the Booth Agreement and Manager's Agreement.
CPLR § 3013 states: “Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense”. CPLR § 3013.
The elements of equitable estoppel are “(1) conduct which amounts to a false representation or concealment of material facts; (2) intention that such conduct will be acted upon by the other party; and (3) knowledge of the real facts.' “ First Union Nat. Bank v. Tecklenburg, 2 AD3d 575, 577 [2nd Dept 2003] (citing Airco Alloys Div. v. Niagara Mohawk Power Corp., 76 A.D.2d 68 [4th Dept 1980] ); Melron Amusement Corp. v. Town of Mamaroneck in Westchester County, 104 A.D.2d 858 [2nd Dept 1984].
Plaintiff failed to allege all of the material elements of the cause of action in equitable estoppel, because he did not allege that Defendant McHugh had knowledge of the real facts. Further, as explained above, Plaintiff did not set forth any facts regarding alleged misrepresentations by Defendant McHugh or any facts that could lead to any reasonable inference that there were any misrepresentations made by Defendant McHugh. In opposition, Plaintiff merely states that each of his causes of action have been sufficiently pleaded (Affirmation of Kenneth S. Rones, Esq., ¶ 12) and that it would not be equitable to allow Defendants to terminate the Agreements when he has spent so much time, energy and money in constructing the booths (Affirmation of Kenneth S. Rones, Esq., ¶ 15). Neither argument sufficiently addresses Plaintiff's failure to meet the pleading requirements of § CPLR 3013.
Accordingly, Defendants' motion to dismiss the fifth cause of action in equitable estoppel is granted.
Plaintiff's Six Cause of Action—Quantum Meruit:
Plaintiff alleges that he, in good faith, constructed the booths on the Premises, expecting to be compensated, and that the Defendants accepted his work, labor and services.
Defendants argue that this cause of action should be dismissed pursuant to CPLR § 3211(a)(1) because the Booth Agreement and the Manager's Agreement sets forth the rights and obligations of the parties with respect to compensation for construction of the booths. Defendants argue that a cause of action in quantum meruit is not available where there is a contract covering the issue.
“Recovery under the theory of quantum meruit is not appropriate where, as here, an express contract governed the subject matter involved”. Parker Realty Group, Inc. v. Petigny, 14 NY3d 864 [2010] ; Levi v. Power Conversion, Inc., 47 A.D.2d 543 [2nd Dept 1975].
It is undisputed that there is an agreement between the parties regarding Plaintiff's compensation for the construction of the booths. The Manager's Agreement states that Defendants will pay Plaintiff 35% of the licensee fees in return for Plaintiff's construction of the booths, obtaining licensees for booths # 5 through 11 and management of the day-to-day operations on the Premises (Defendants' Exhibit B). Existence of this express contract requires dismissal of the cause of action in quantum meruit.
Accordingly, Defendants' motion to dismiss the sixth cause of action in quantum meruit is granted.
Plaintiff's Motion for Preliminary Injunction:
Plaintiff's Order to Show Cause sought an order: 1) “[d]irecting the Defendants to refrain from removing the Plaintiff and the Plaintiff's property from premises located at 103 Main Street, Cold Spring, N.Y. 10516” and 2) “[d]irecting the Defendants to hold in Defendant, Mary McHugh, Esq.['s] attorney escrow account, moneys received from licensees or occupants of booths “5” through “11” until such time as the underlying issues of the pending plenary actions are resolved or until further Order of the court” (Plaintiff's Order to Show Cause, p. 2).
Defendants seek to vacate the temporary restraining order, arguing that Defendant McHugh was not given an opportunity to be heard. Defendant McHugh asserts that she was out of the country when she was required to be present in Court on Plaintiff's order to show cause. Defendants make no argument opposing Plaintiff's request for a preliminary injunction.
Defendants' request to vacate the temporary restraining order is moot as it is in place only until the date of this Court's determination on Plaintiff's application for a preliminary injunction, the date of this Decision and Order. CPLR § 6301.
In order to secure a temporary restraining order or preliminary injunction, a party must demonstrate: (1) the likelihood of success on the merits, (2) irreparable injury and (3) a balancing of the equities in favor of the moving party. Foy v. Umeki, 10 AD3d 604 [2nd Dept 2004].
Plaintiff has not demonstrated all of the elements required to secure a preliminary injunction. As explained above, Plaintiff must first demonstrate his likelihood of success on the merits. Plaintiff's complaint currently has two surviving causes of action—breach of contract and unjust enrichment. Plaintiff has not, however, argued that he is likely to succeed on the merits on those claims or on any claims in his complaint.
Further, Plaintiff has failed to demonstrate irreparable injury. Plaintiff has alleged that he will be irreparably injured without the Court's intervention because he will be removed from the Premises and his personal property, including inventory and records, will be discarded without further notice. However, as explained above, Plaintiff is not entitled to remain on the Premises following termination of the Booth Agreement, as it is a license. Further, Plaintiff has not demonstrated that removal of his person and property from the Premises will result in anything other than monetary damages. Case law is well established that monetary damages do not amount to irreparable injury warranting a preliminary injunction. Mar v. Liquid Management Partners, LLC, 62 AD3d 762, 763 [2nd Dept 2009] (“Where the plaintiffs can be fully compensated by a monetary award, an injunction will not issue because no irreparable harm will be sustained in the absence of such relief”).
Finally, Plaintiff has not argued that a balancing of the equities favors a preliminary injunction in his favor, other than to argue that it would be unjust to allow Defendants to cancel the Agreements.
Accordingly, Plaintiff's motion for preliminary injunction is denied. The temporary restraining order previously issued is hereby vacated.
SUMMARY:
Defendants' motion to dismiss Plaintiff's complaint is granted as to the first, fourth, fifth and sixth causes of action. Defendants' motion to dismiss Plaintiff's complaint is denied as to the second (unjust enrichment) and third (breach of contract) causes of action.
Plaintiff's motion for preliminary injunction is denied.
Counsel shall appear for a compliance conference on July 29, 2016 at 9:30 am. Prior to that, counsel shall meet and confer regarding any remaining discovery to be conducted.
The foregoing constitutes the Decision and Order of the Court.