Opinion
INDEX NO. 652109/2020
02-28-2021
ROCHESTER DRUG COOPERATIVE, INC., Plaintiff, v. DRUG MART SOLUTIONS, LLC,YEVGENY ELYASH, JULIA FISHMAN, EUGENE BABENKO Defendant.
NYSCEF DOC. NO. 19 PRESENT: HON. ANDREW BORROK Justice MOTION DATE 08/12/2020 MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 were read on this motion to/for DISMISSAL. Upon the foregoing documents, Drag Mart Solutions LLC d/b/a Quality RX Pharmacy, Yevgeny J. Elyash, Julia Fishman, and Eugene Babenko's (collectively, the Defendants) motion to dismiss is granted solely to the extent of the claims for goods sold and delivered (first), unjust enrichment (third), and an account stated (fourth) because these claims are duplicative of the claim for breach of contract.
The Relevant Facts and Circumstances
Reference is made to a Credit Application dated July 19, 2010 (the Agreement; NYSCEF Doc. No. 11), by and between Rochester Drag Cooperative, Inc. (the Plaintiff) and Drag Mart Solutions LLC d/b/a Quality RX Pharmacy (Drug Mart), pursuant to which Drug Mart applied for credit to purchase certain goods and services from the Plaintiff and Drag Mart agreed to provide timely payment for the same. As part of the Agreement, Drag Mart granted the Plaintiff a security interest in its personal property, including, among other things, accounts receivable, insurance proceeds, prescription records, inventory, and equipment (id. at 2). The Agreement also included a provision wherein Mr. Elyash, Ms. Fishman, and Mr. Babenko each provided a personal guaranty of "the prompt and full performance and payment" of Drug Mart's obligations to the Plaintiff pursuant to the Agreement (id. at 2-5). By letter dated April 9, 2020, Plaintiff's counsel issued a demand to the Defendants for the sum of $3,006,390.99 (NYSCEF Doc. No. 16). The Plaintiff then commenced this action, alleging claims for (1) goods sold and delivered, (2) breach of contract, (3) unjust enrichment, (4) account stated, (5) breach of guaranty, and (6) foreclosure of security interest. The Defendants responded with the instant motion to dismiss all causes of action other than the second cause of action for breach of contract.
Discussion
On a motion to dismiss, the pleadings are to be afforded a liberal construction and the facts as alleged in the complaint are accepted as true (Leon v Martinez, 84 NY2d 83, 87 [1994]). Dismissal under CPLR § 3211 (a)(7) requires the court to assess whether the proponent of the pleading has a cause of action and not whether he has stated one (id.). The well plead complaint alleges a valid and enforceable Agreement that requires Drug Mart to remit timely payment (NYSCEF Doc. No. 2, ¶¶ 13-20; NYSCEF Doc. No. 11). As the second cause of action for goods sold and delivered seeks to recover identical damages it is dismissed as duplicative (see Suverant LLC v Brainchild, Inc., 2019 NY Slip Op 31154[U], *8 [Sup Ct, NY County 2019] [dismissing claim for goods sold and delivered as duplicative of breach of contract]). The claim for breach of the Agreement also renders the third cause of action for unjust enrichment and the fourth cause of action for an account stated impermissibly duplicative (see Suverant LLC v Brainchild, Inc., 2021 NY Slip Op 00918, *2 [1st Dept 2021] [dismissing account stated and unjust enrichment claims because there was a valid contract]; Clark-Fitzpatrick, Inc. v Long Is. R. Co., 70 NY2d 382, 388 [1987]; Hagman v Swenson, 149 AD3d 1, 7 [1st Dept 2017] [dismissing account stated claim as another means to collect under a disputed contract]). Therefore, these causes of action are also dismissed. With regard to the fifth cause of action for breach of guaranty, however, the Plaintiff has adequately pled that Mr. Elyash, Ms. Fishman, and Mr. Babenko have guaranteed Drug Mart's obligations which guaranty they have breached (NYSCEF Doc. No. 2, ¶¶ 28-32). This claim is not duplicative. Accordingly, the branch of the Defendants' motion to dismiss the fifth cause of action for breach of guaranty is denied. The sixth cause of action also can not be dismissed at this stage of the lawsuit. The Plaintiff alleges a perfected security interest in certain property of Drug Mart. To wit, pursuant to the Agreement, the Plaintiff was granted a security interest in an enumerated list of Drug Mart's personal property (NYSCEF Doc. No. 11). The Plaintiff alleges that it filed valid UCC financing statements with respect to the collateral and has produced such financing statements in opposition to this motion (NYSCEF Doc. No. 12). Therefore, the sixth cause of action can not be dismissed. Accordingly, it is ORDERED that the Defendants' motion to dismiss is granted to the extent of the claims for goods sold and delivered (first), unjust enrichment (third), and an account stated (fourth) but otherwise denied; and it is further ORDERED that the Defendants shall file an answer within 20 days of the date of this decision and order; and it is further ORDERED that the parties shall appear for a remote preliminary conference by MS Teams on March 19, 2021 at 12 pm. 2/28/2021
DATE
/s/ _________
ANDREW BORROK, J.S.C.