Opinion
Index No. EC2021-32898
08-29-2022
New York State Correctional Officers and Police Benevolent Association, Inc., Plaintiff, v. Patrick Brockway, Defendant.
Marinstein & Marinstein, Esqs., PLLC, Troy (Edward R. Marinstein of counsel), for plaintiff. E. Stewart Jones Hacker Murphy, LLP, Troy (James C. Knox of counsel), for defendant.
Unpublished Opinion
Marinstein & Marinstein, Esqs., PLLC, Troy (Edward R. Marinstein of counsel), for plaintiff.
E. Stewart Jones Hacker Murphy, LLP, Troy (James C. Knox of counsel), for defendant.
ROBERT J. MULLER, J.S.C.
Defendant is a Corrections Officer at Great Meadow Correctional Facility in Comstock, Washington County and a member of plaintiff, which has a Rainy Day Fund with the stated purpose of "provid[ing] supplemental income for qualifying members who are suspended without pay for disciplinary reasons for incidents that occur[red] while on duty." On November 14, 2017, defendant signed and submitted a Rainy Day Fund Application and Agreement (hereinafter Agreement) to plaintiff. This Agreement states, in pertinent part:
"I hereby understand that by submitting this application and signing this document, I agree that if by settlement, arbitration or other means, I am restored to the payroll for any period of time for which payment is received from the Fund, I shall reimburse to [plaintiff] the amount paid to me during my period of suspension....
"I also acknowledge that I have been provided a copy of the Rainy Day Fund [P]olicy and fully understand the terms set forth therein."
The Rainy Day Fund Policy then provides as follows:
"The member must... agree that if the member is, by settlement, arbitration or other means, restored to the payroll for any period of time for which he/she received payment from the Fund, the member shall reimburse [plaintiff] the amount paid to the member during his/her period of suspension. The member must execute a signed agreement before receiving any payments, and as a condition thereof, if he/she receives his/her back pay, the member shall reimburse [plaintiff]."
By Arbitrator's Opinion and Award dated February 4, 2019, defendant received "a six (6) month disciplinary suspension without pay and accruals effective November 14, 2017 through May 14, 2018," with the Arbitrator further finding that defendant was "to be made whole for all pay, benefits and accruals for the period following his six (6) month disciplinary suspension commencing May 15, 2018 through the date of his return to the payroll."
On March 28, 2019, Frank Gilbo-plaintiff's treasurer-sent a letter to defendant advising as follows:
"Pursuant to the Rainy Day Fund [P]olicy and the [A]greement that you signed, members who receive funds from the Rainy Day Fund and subsequently are awarded back pay are required to reimburse [plaintiff] the amount paid during the period of suspension to which back pay was awarded.... According to our calculation and based upon your back pay award, the amount to reimburse the Rainy Day Fund is $26,850[.00]. Your reimbursement check should be made payable to [plaintiff], attention Frank Gilbo,... Treasurer."
Defendant failed to remit payment to plaintiff and, on November 26, 2019, Gilbo sent a second letter advising that "payment must be received no later than 30 days from the date of this letter" [emphasis in original]. Gilbo further directed:" If you are having trouble meeting your obligation, please contact me in order to establish if a payment plan is appropriate and necessary" [emphasis in original]. Defendant then sent an email to Gilbo on that same date stating as follows: "I'm sending this communication to inform you that I intend to pay 100 dollars a pay period until my debt with [plaintiff] is settled."
Defendant thereafter paid plaintiff $100.00 on December 15, 2019; $100.00 on June 16, 2020; $200.00 on August 5, 2020; and $200.00 on February 16, 2021. With no further payments forthcoming, plaintiff commenced this action on May 24, 2021, subsequently filing an amended complaint as of right on August 4, 2021 (see CPLR 3025 [a]). Plaintiff alleges four causes of action: (1) breach of contract; (2) equitable estoppel; (3) unjust enrichment; and (4) account stated. Presently before the Court is defendant's pre-answer motion to dismiss the amended complaint for failure to state a cause of action (see CPLR 3211 [a] [7]).
"[T]he standard to be applied on a motion [of this type] is both familiar and well settled-'[the Court] must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts alleged fit within any cognizable legal theory'" (Rodriguez v Jacoby & Meyers, LLP, 126 A.D.3d 1183, 1185 [2015], lv denied 25 N.Y.3d 112 [2015], quoting He v Realty USA, 121 A.D.3d 1336, 1339 [2014] [internal quotation marks and citation omitted]; see Torrance Constr., Inc. v Jaques, 127 A.D.3d 1261, 1263 [2015]; Snyder v Brown Chiari, LLP, 116 A.D.3d 1116, 1117 [2014]).
Turning first to the breach of contract cause of action, the amended complaint alleges that defendant signed the Agreement with Rainy Day Fund Policy attached thereto - with a copy of these documents annexed to the pleading. The amended complaint further alleges that plaintiff paid defendant from the Rainy Day Fund in accordance with the terms of the Agreement, and that defendant failed to reimburse plaintiff for the amount paid during the period of suspension for which he was later awarded back pay. Finally, the amended complaint alleges monetary damages in the amount of $26,900.00, the amount which remains due and owing. Under the circumstances, the Court finds that the amended complaint adequately sets forth the elements of a breach of contract cause of action: "formation of a contract, performance by one party, failure to perform by another, and resulting damage" (New York State Workers' Compensation Bd. v SGRisk, LLC, 116 A.D.3d 1148, 1153 [2014]; see Torok v Moore's Flatwork & Founds., LLC, 106 A.D.3d 1421, 1422 [2013]).
There appears to be a discrepancy relative to the amount due and owing under the Agreement. While Gilbo indicates in his March 28, 2019 letter that $26,850.00 is due and owing, the amended complaint alleges that $27,500.00 is owed. Plaintiff bases its request for damages on the amount in the amended complaint, thus seeking $26,900.00 - or $27,500.00 less the $600.00 paid by defendant. If Gilbo's figure were to be used, however, defendant would owe only $26,250.00.
Defendant contends that the amended complaint fails to state a cause of action for breach of contract because no specific time frame for repayment was included in the Agreement and plaintiff permitted defendant to make incremental payments, which remained ongoing when the action was commenced. This contention, however, is without merit. While the Agreement did not include any specific time frame for repayment, in his November 26, 2019 letter Gilbo directed defendant to make the requisite payment within 30 days or, if the entire payment could not be made, to contact Gilbo to discuss a payment plan. Defendant then emailed Gilbo that same day, advising that he would pay $100.00 per payment period until the debt was paid. In this regard, the amended complaint alleges a meeting of the minds sufficient to form an agreement relative to repayment of the amount due and owing (see Stonehill Capital Mgt. LLC v Bank of the W., 28 N.Y.3d 439, 448-449 [2016]; Harris v Schreibman, 200 A.D.3d 1117, 1124-1125 [2021]). To the extent that defendant made only four payments over the next 18 months-with no payments apparently made since February 16, 2021-breach of the agreement is also adequately alleged.
In any event, defendant's contention that he has an indefinite period of time to reimburse plaintiff is illogical. Indeed, if every member obligated to reimburse the Rainy Day Fund did so at their leisure-with a couple payments of $100.00 or $200.00 per year-the Fund would cease to exist.
Plaintiff has agreed to withdraw its second cause of action sounding in equitable distribution and, as such, it need not be addressed.
Turning now to the third cause of action," '[t]he theory of unjust enrichment lies as a quasi-contract claim and contemplates an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties'" (Redwing Constr. Co., Inc. v Sexton, 181 A.D.3d 1027, 1030 [2020], quoting Georgia Malone & Co., Inc. v Rieder, 19 N.Y.3d 511, 516 [2012] [internal quotation marks and citations omitted])." 'An unjust enrichment claim is not available where it simply duplicates, or replaces, a conventional contract or tort claim'" (Redwing Constr. Co., Inc. v Sexton, 181 A.D.3d at 1030, quoting Corsello v Verizon NY, Inc., 18 N.Y.3d 777, 790 [2012]; accord Doller v Prescott, 167 A.D.3d 1298, 1301 [2018]).
Here, the unjust enrichment cause of action in the amended complaint is based entirely on the Agreement, alleging that "defendant was unjustly enriched to the extent of $26,900.00 and is required to reimburse plaintiff... to the extent of $26,900.00." This cause of action must therefore be dismissed as duplicative of the breach of contract cause of action (see Redwing Constr. Co., Inc. v Sexton, 181 A.D.3d at 1030-1031; compare Shmaltz Brewing Co., LLC v Dog Cart Mgt. LLC, 202 A.D.3d 1349, 1353-1354 [2022]).
With respect to the fourth cause of action," '[a]n account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due' and may be 'implied from the retention of an account rendered for an unreasonable period of time without objection and from the surrounding circumstances'" (Hubbell, Inc. v Lazy Swan Golf & Country Club LLC, 187 A.D.3d 1448, 1449 [2020], quoting Jim-Mar Corp. v Aquatic Constr., 195 A.D.2d 868, 869 [1993] [citations omitted], lv denied 82 N.Y.2d 660 [1993]; see Haselton Lbr. Co., Inc. v. Bette & Cring, LLC, 123 A.D.3d 1180, 1182 [2014]; Whiteman, Osterman & Hanna, LLP v Oppitz, 105 A.D.3d 1162, 1163 [2013]). That being said, "[a] cause of action alleging an account stated cannot be utilized simply as another means to attempt to collect under a disputed contract" (Simplex Grinnell v Ultimate Realty, LLC, 38 A.D.3d 600, 600 [2007]; see Ross v Sherman, 57 A.D.3d 758, 759 [2008]). To the extent that the amended complaint is utilizing the account stated cause of action in precisely this manner, it too must be dismissed as duplicative of the breach of contract cause of action (see Vanpoy Corp., S.R.L. v Soleil Chartered Bank, 204 A.D.3d 486, 487-488 [2022]; Suverant LLC v Brainchild, Inc., 191 A.D.3d 513, 515 [2021]; Del Gallo Country Pools, Inc. v Kassner, 46 Misc.3d 1219 [A], 2015 NY Slip Op 50126[U], *4 [Sup Ct, Saratoga County 2015]).
Based upon the foregoing, defendant's motion to dismiss the amended complaint is granted to the extent that the second, third and fourth causes of action are dismissed, and the motion is otherwise denied. Defendant is hereby directed to serve an answer to the remaining cause of action in the amended complaint within thirty (30) days of the date of service of this Decision and Order with notice of entry thereon.
Therefore, having considered NYSCEF document Nos. 18 and 20 through 32, and oral argument having been heard on August 25, 2022 with Edward R. Marinstein, Esq. appearing on behalf of plaintiff and James C. Knox, Esq. appearing on behalf of defendant, it is hereby
ORDERED that defendant's motion to dismiss the amended complaint is granted to the extent that the second, third and fourth causes of action are dismissed, and the motion is otherwise denied; and it is further
ORDERED that defendant shall serve an answer to the remaining cause of action in the amended complaint within thirty (30) days of the date of service of this Decision and Order with notice of entry thereon.
The original of this Decision and Order has been e-filed by the Court. Counsel for plaintiff is hereby directed to serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513.