Opinion
2020–08606 Index No. 719123/19
08-02-2023
Churong LIU, appellant, v. Abraham GABBAY, also known as Ebrihim Aida Gabbay, doing business as Dansha Corp., respondent, et al., defendant.
Law Office of Mary T. Dempsey, P.C., New York, NY, for appellant. Muchmore & Associates, PLLC, Brooklyn, NY (Maximilian Travis and Ashley Crooks of counsel), for respondent.
Law Office of Mary T. Dempsey, P.C., New York, NY, for appellant.
Muchmore & Associates, PLLC, Brooklyn, NY (Maximilian Travis and Ashley Crooks of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Robert I. Caloras, J.), entered October 7, 2020. The order, insofar as appealed from, granted the motion of the defendant Abraham Gabbay, also known as Ebrihim Aida Gabbay, doing business as Dansha Corp., pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Abraham Gabbay, also known as Ebrihim Aida Gabbay, doing business as Dansha Corp., pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him is denied.
The plaintiff commenced this action against the defendant Abraham Gabbay, also known as Ebrihim Aida Gabbay, doing business as Dansha Corp. (hereinafter Gabbay), and another, to recover damages for breach of contract and money had and received arising from the alleged breach of a home renovation contract that she entered into with "Dansha Corp." as general contractor. Gabbay executed the contract on behalf of "Dansha Corp.," an entity that does not exist, and was not himself a party to the contract. Prior to discovery, Gabbay moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against him on the ground that he was not a party to the subject contract and had signed it in his capacity as president of "Dansha Realty Corp." Gabbay explained, in an affidavit submitted in support of his motion, that "Dansha Corp." is a trade name or "d/b/a" for "Dansha Realty Corp.," an entity that does exist. In an order entered October 7, 2020, the Supreme Court, inter alia, granted Gabbay's motion. The plaintiff appeals, and we reverse.
" ‘On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ " ( Delric Constr. Co., Inc. v. New York City Sch. Constr. Auth., 204 A.D.3d 750, 751–752, 166 N.Y.S.3d 656, quoting Palero Food Corp. v. Zucker, 186 A.D.3d 493, 495, 129 N.Y.S.3d 104 ; see Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d 714, 715, 169 N.Y.S.3d 90 ). "Where a party offers evidentiary proof on a motion pursuant to CPLR 3211(a)(7), and such proof is considered but the motion has not been converted to one for summary judgment, ‘the criterion is whether the proponent of the pleading has a cause of action, not whether [the proponent] has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it[,] ... dismissal should not eventuate’ " ( Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d at 715–716, 169 N.Y.S.3d 90, quoting Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ). " ‘Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss’ " ( Litvinoff v. Wright, 150 A.D.3d 714, 716, 54 N.Y.S.3d 22, quoting Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38, 827 N.Y.S.2d 231 ; see Parekh v. Cain, 96 A.D.3d 812, 815, 948 N.Y.S.2d 72 ). "A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law" ( Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d at 715, 169 N.Y.S.3d 90 ; see Delric Constr. Co., Inc. v. New York City Sch. Constr. Auth., 204 A.D.3d at 751, 166 N.Y.S.3d 656 ).
Here, the Supreme Court erred in granting Gabbay's motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against him. Although there is "no individual liability for principals of a corporation for actions taken in furtherance of the corporation's business" ( Victory State Bank v. EMBA Hylan, LLC, 169 A.D.3d 963, 966, 95 N.Y.S.3d 97 [internal quotation marks omitted]), " ‘a person entering into a contract on behalf of a nonexistent corporate entity may be held personally liable on the contract’ " ( Sutton v. Houllou, 191 A.D.3d 1031, 1032, 141 N.Y.S.3d 501, quoting Commissioners of State Ins. Fund v. Staulcup, 95 A.D.3d 1259, 1261, 945 N.Y.S.2d 355 ; see BCI Constr., Inc. v. Whelan, 67 A.D.3d 1102, 888 N.Y.S.2d 272 ; Spring Val. Improvements, LLC v. Abajian, 40 A.D.3d 619, 620, 835 N.Y.S.2d 638 ; San Sung Korean Methodist Church of N.Y. v. Professional USA Constr. Corp., 14 A.D.3d 501, 502, 789 N.Y.S.2d 65 ). Here, accepting the allegations in the complaint as true and giving the plaintiff the benefit of every possible favorable inference, the complaint states causes of action against Gabbay to recover damages for breach of contract (see Magee–Boyle v. Reliastar Life Ins. Co. of N.Y., 173 A.D.3d 1157, 1159, 105 N.Y.S.3d 90 ) and money had and received (see Litvinoff v. Wright, 150 A.D.3d at 716, 54 N.Y.S.3d 22 ). There is no dispute that "Dansha Corp.," the entity named as the general contractor in the contract, does not exist. Furthermore, the evidence submitted by Gabbay failed to conclusively establish that "Dansha Realty Corp." was the intended party to the contract for purposes of a prediscovery CPLR 3211 motion to dismiss (see Litvinoff v. Wright, 150 A.D.3d at 716, 54 N.Y.S.3d 22 ; cf. Civilized People, Inc. v. Milk St. Cafe, Inc., 129 A.D.3d 761, 763, 10 N.Y.S.3d 611 ; JMT Bros. Realty, LLC v. First Realty Bldrs., Inc., 51 A.D.3d 453, 455, 856 N.Y.S.2d 616 ; Matter of Harmon v. Ivy Walk Inc., 48 A.D.3d 344, 853 N.Y.S.2d 289 ; Quebecor World [USA], Inc. v. Harsha Assoc., L.L.C., 455 F.Supp.2d 236, 242–243 [W.D.N.Y.] ). The affidavit submitted by Gabbay in support of the motion was not "documentary" within the meaning of CPLR 3211(a)(1) (see Hartnagel v. FTW Contr., 147 A.D.3d 819, 821, 47 N.Y.S.3d 96 ; Anderson v. Armentano, 139 A.D.3d 769, 770–771, 33 N.Y.S.3d 294 ; Fontanetta v. John Doe 1, 73 A.D.3d 78, 86, 898 N.Y.S.2d 569 ), and the remainder of the evidence, including invoices sent to the plaintiff from "Dansha Corp.," do not prove that "Dansha Corp." is a trade name for "Dansha Realty Corp." (cf. JMT Bros. Realty, LLC v. First Realty Bldrs., Inc., 51 A.D.3d at 455, 856 N.Y.S.2d 616 ; Matter of Harmon v. Ivy Walk Inc., 48 A.D.3d 344, 853 N.Y.S.2d 289 ).
Accordingly, the Supreme Court should have denied Gabbay's motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against him.
BRATHWAITE NELSON, J.P., CHAMBERS, DOWLING and WARHIT, JJ., concur.