Opinion
Index No. 504198/2020
10-28-2022
S&P 350 INC. AND TENDER TOUCH PHYSICAL THERAPY, PLLC., Plaintiff, v. VK DENTAL GROUP INC., Defendant,
Unpublished Opinion
PRESENT: HON. LEON RUOHELSMAN, Judge.
DECISION AND ORDER
Hon. Leon Ruehelsman, J.S,C,
The defendant has moved seeking to dismiss the complaint. The. plaintiff has cross~moved seeking an extension of time. The motions have been opposed respectively. Papers have been submitted by the parties and after reviewing all the arguments this court now makes, the following, determination.
On March 8,. 20:17 the plaintiff entered into a sublease agreement with non-party MetroTech Smile Dental P.C., to lease the. second floor of 350 Fulton Street in Kings County. On April 19, 2018 MetroTech Smile sold and assigned their interests to the defendant VK Dental P.C. Disagreements arose between the tenant and the new landlord and the plaintiff commenced an action seeking various reliefs. An order to show cause was signed prohibiting the defendant from taking any eviction actions against the plaintiff and the; matter was adjourned to March Si, 2020. The COVID-19 pandemic and ensuing court shutdown postponed the return date and indeed no date was- ever re-scheduled. On November .19, .2021 the defendant surrendered the premises to the landlord and no longer has any interest in the property.
The defendant now moves seeking to dismiss the action on the grounds the plaintiff failed to seek a default judgement within one year pursuant to CPLR. §3215. Further, the defendant seeks to dismiss the complaint on the grounds the complaint fails to allege any causes of action. The plaintiff has cross-moved seeking an extension of time in which to seek a default judgement.
Conclusions of Law
It is well settled that upon a motion to dismiss the court must, determine., accepting the allegations of' the- complaint as true, whether the party can succeed upon any reasonable, view of those facts (Struian v. Kaufman & Kahn, LLP, 168 A.D.3d 1114,. 93 N.Y.S.3d 334 [2d Dept., 2019].). Further, all the allegations in the complaint are deemed true and all reasonable inferences may be. drawn in favor of the plaintiff (Weiss v. Lowenberg, 95 A.D.3d 405, 944 N.Y.S.2d 27 [1st Dept., 2012]). 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 pre-discovery CPLR §3.211 motion to dismiss (see, Moskowitz v. Masliansky 198 A.D.3d 637, 155 N.Y.S.3d 414 [2021]) ..
Notwithstanding the. delay caused by the COVID-19 pandemic and the, failure of either party to reach out to the court, to resume the progression of the case, an examination of the Verified Complaint reveals it fails to. allege any cause of action.
The first cause of action alleges, conversion, diversion and misappropriation. The. crux of this allegation- is contained in one paragraph of the Verified Complaint wherein it states that "at all times hereinafter mentioned, the Defendant engaged in conversion and embezzlement of Plaintiffs' funds for their own personal use, by holding themselves out. to be the. 'Plaintiffs and exercised, unauthorized dominion and control over the property of Plaintiff" (see. Verified Complaint; ¶6 [NYSCEF .Doc. No. 6]). The Verified Complaint, does not describe the "funds'' that were embezzled, how the conversion or embezzlement took place and how the defendants .held themselves out as plaintiff. Moreover, the Verified Complaint does not describe or explain in any manner how the defendant exercised dominion and control over plaintiff's property. Thus, without any factual assertions of specific wrongdoing no such allegation is proper (see, Eklund v. Pinkey, 27 A.D.3d 878, 810 N.Y.S.2d 547 [3rd Dept., 2006]}. Therefore, since this allegation, is conclusory and fails, to describe, in any manner, the nature of the. claim, the motion seeking to dismiss this cause of action is granted.
The second cause of action alleges a breach of the covenant. of good faith and fair dealing. It is well settled that cause of action is premised upon parties to a contract exercising good faith while performing the terms of an agreement (Van Valkenburgh Nooger & Neville v. Havden Publishing Co., 30 N.Y.2d 34, 330 N.Y.S.2d 329 [1972]) . The crux of this allegation is contained in one paragraph of the Verified .Complaint wherein, it states that "the Defendant breached this implied covenant of good faith and fair dealing by actions such as embezzling company funds, acting in their own self-interest to the detriment of Plaintiffs" (see, Verified Complaint, ¶11 [NYSCEF Doc. No. 6]). Again, the Verified Complaint does not. describe, in any manner, how any embezzlement took place and how the: defendant acted in its own self interest.-. Without an. elementary understanding' of the facts-giving rise to this cause of action no such cause, of action is proper. Therefore, the motion seeking to dismiss this claim is granted.
The third cause of action alleges fraud. It is well settled that to succeed upon a claim Of fraud it must be demonstrated there was: a material misrepresentation p£ fact., made with. knowledge of the falsity, the intent to induce reliance, reliance upon the misrepresentation and damages (Cruclata v. O'Donnell & Mclaughlin, Esas, 149 A.D.3d 1034, 53 N.Y.S.3d 328 [2d Dept., 2017]). These elements must each be supported by factual allegations containing details constituting the wrong alleged (see, JPMorgan Chase Bank, N.A. v. Hall, 122 A.D.3d 576, 996 N.Y.S.2d 309 [2d Dept., 2014]). The Verified Complaint merely states that "defendant's misconduct with the Plaintiffs' checking account amounts to, fraud" and that "defendant's material misrepresentations with respect to their right to use Plaintiffs' account amounts: to, fraud'' (. (see. Verified Complaint, ¶¶14, 15 [NYSCEF Doc. No.. 6].). That, is far short of the necessary detail required to allege fraud... Indeed, those allegations are conclusory and could not possibly support a fraud cause of action. Therefore, the motion seeking to dismiss, this cause of action is granted.
The last cause of action is unjust enrichment. The elements of a cause, of action to recover for unjust enrichment are that '"(1) the defendant was enriched,. (2) at the plaintiff's, expense,, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered" (see, GFRE, Inc.. v. U.S. Bank, N.A., 130 A.D.3d 569, 13 N.Y.S.3d 452 [2d Dept., 2015]). Thus, "the essential inquiry in any action for unjust enrichment or restitution, is whether it is against equity and good conscience to permit the defendant to retain what is. sought to be recovered" (see. Paramount Film Distributing Corp., 30 N.Y.2d. 415, 344 N.Y.S.2d 388 [1972]), The Verified Complaint merely states that "defendant, misappropriated Plaintiffs' company funds and converted them for personal expenses" and "defendant remains in possession of account information and key assets belonging to Plaintiffs, even though the Plaintiffs never authorized same" (see, Verified Complaint, ¶¶19, 20 [NYSCEF Dog. No.. 6]). The. Verified Complaint does. not. explain the nature of any misappropriation, the nature of the "company funds", what was misappropriated, and the nature of any account information or key assets in defendant's possession. The vague and conclusory nature of facts fails to adequately support the allegation. Consequently, the motion seeking to dismiss the fourth cause of action is granted. Therefore, based on the foregoing the motion seeking to dismiss the, lawsuit, is granted. The cross-motion is now denied as moot.
So ordered.