Opinion
650005/2020
07-21-2020
HOSSAM HASSAN ELANWAR SABER HASSN, d/b/a HGM, Plaintiff, v. ARMOUTH INTERNATIONAL INC., Defendant.
Todd A. Gabor, Esq., Cedarhurst, NY, for plaintiff. Jason R. Mischel, Esq., New York, NY, for defendant.
Todd A. Gabor, Esq., Cedarhurst, NY, for plaintiff.
Jason R. Mischel, Esq., New York, NY, for defendant.
Gerald Lebovits, J.
Plaintiff, Hossam Hassan Elanwar Saber Hassn, is a clothing manufacturer. Defendant, Armouth International, Inc., is a wholesale clothing distributor. This action arises out of a dispute between the parties over $341,997.83 of clothing shipped by plaintiff to defendant that defendant allegedly failed to pay for. (Defendant claims that the clothing was damaged when delivered, and thus defective.)
Plaintiff sued defendant for the $341,997.83, asserting claims for an account stated, breach of contract, and unjust enrichment. Defendant now moves under CPLR 3211 (a) (7) to dismiss the unjust-enrichment claim. Plaintiff cross-moves under CPLR 3215 for a default judgment. Plaintiff's cross-motion is denied; defendant's motion is granted.
DISCUSSION
Plaintiff cross-moves under CPLR 3215 for default judgment on the ground that defendant's motion to dismiss is untimely.
It is undisputed that plaintiff served the complaint on defendant via the Secretary of State on January 2, 2020; that under CPLR 320 (a), defendant therefore ordinarily would be required to answer or move by February 3, 2020; and that defendant did not do so. Defendant argues, though, that plaintiff granted it repeated extensions to respond up to and including March 10 (the date defendant moved to dismiss), and thus that the motion to dismiss is timely. This court agrees.
The parties have submitted email correspondence between the counsel for plaintiff and defendants. The emails reflect that counsel for plaintiff agreed to repeated extensions of defendant's time to respond—and that defendant moved to dismiss within the extension of time granted by plaintiff.
In response, plaintiff argues that it granted defendant an extension only of time to answer, not to answer or move to dismiss. This court is not persuaded. This email correspondence is ambiguous about whether the attorneys understood the agreement between them to pertain to an extension of time to answer or an extension of time to respond (whether by answer or motion). Plaintiff is correct, to be sure, that the better practice would be to avoid such ambiguity by executing a formal stipulation rather than continuing to exchange extension emails. But this court declines on this record to hold defendant to the narrowest possible understanding of the extensions afforded by plaintiff and then grant plaintiff default judgment on that basis.
The court's conclusion on this point is strengthened by the fact that it is not entirely clear whether plaintiff could have agreed to extend defendant's time to answer without thereby also extending defendant's time to move to dismiss. (See CPLR 3211 [e] [permitting a motion to dismiss under CPLR 3211 [a] "[a]t any time before service of the responsive pleading is required"].)
Defendant's motion under CPLR 3211 (a) (7) to dismiss plaintiff's unjust-enrichment claim is granted. A party may not assert a claim in unjust enrichment where a valid contract between the parties covers the same subject matter. ( Cox v. NAP Constr. Co., Inc. , 10 NY3d 592, 607-608 [2008].) Plaintiff objects that since issue has not been joined (or discovery conducted), permitting plaintiff to assert "a cause of action for unjust enrichment is essential until it is established" that defendant conceded "the veracity of the invoices" sent by plaintiff to defendant, or until this court rules one way or the other. (NYSCEF No. 9 at 6.) But this concern is misplaced: by moving to dismiss the unjust-enrichment claim as duplicative, defendant necessarily acknowledged that the invoices constituted (or were part of) a valid contract between the parties.
Defendant's acknowledgment of the validity of the parties' contract still leaves the crucial questions whether plaintiff properly performed its obligations under the contract, whether defendant nonetheless breached, and whether that breach injured plaintiff. (See VisionChina Media Inc. v. Shareholder Representative Servs., LLC , 109 AD3d 49, 58 [1st Dept 2013] [describing elements of breach-of-contract claim].) Those questions are left for another day.
Accordingly, it is hereby
ORDERED that defendant's motion under CPLR 3211 (a) (7) to dismiss plaintiff's unjust-enrichment claim is granted; and it is further
ORDERED that plaintiff's cross-motion for default judgment under CPLR 3215 is denied; and it is further
ORDERED that defendant shall serve and file an answer within 20 days of entry of this order on NYSCEF.