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Civil Court, City of New York.

FIONA REN CO., LTD., Petitioner, v. VOLPE IMPORT, INC, Respondent.


Decided: March 21, 2019

Robert Saxon Esq., Meyers Saxon & Cole, 3620 Quentin Road, Brooklyn, New York 11234, For plaintiff Younghoon Ji Esq., Ahne & Ji LLP, 1220 Broadway, Suite 502, New York, New York 10001, For defendant

Recitation, as required by Civil Practice Law and Rules (CPLR) § 2219(a), of the papers considered in the review of this Motion:

Papers Numbers

Notice of Motion and Affidavits Annexed 1,2

Order to Show Cause and Affidavits Annexed 0

Answering Affidavits 3

Replying Affidavits 4



Upon the foregoing cited papers, the Decision/Order on this Motion is as follows:

In an action for breach of contract seeking damages, defendant moves pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.

Defendant contends that the complaint does not contain factual allegations to establish the elements of a cause of action for breach of contract.

To recover damages for breach of contract, plaintiff must show (1) the existence of a valid, enforceable contract between the parties (2) the plaintiff's full performance thereunder (3) the defendant's breach of the contract and (4) resulting damages. (see Dertringo v. South Island Family Medical LLC, 158 AD3d 609 [2nd Dept 2018] ).

In the instant action, the complaint states “defendants on or about 05/09/2017 entered into an agreement Goods sold delivered work labor services rental in the agreed and specified amount of $ 11,960.00.” Defendant contends that the complaint does not specify with whom defendant entered into the “agreement,” and as such, fails to allege the requisite element of the existence of an agreement between the parties, warrantying dismissal.

Defendant argues that plaintiff fails to further allege the remaining elements of breach of contract. The complaint alleges “defendants defaulted under the terms of the agreement by failing to make the payments” and “there is a due balance in the specific sum of $ 11,960.” This language, defendant asserts, does not set forth the terms of the contract, or consequently, the parties' contractual obligations. Without describing the nature of the parties' contractual responsibilities, the complaint fails to allege plaintiff's full performance of its contractual obligations, defendant's default thereunder, and basis for damages. Defendant argues the complaint is conclusory and devoid of factual allegations that if accepted as true, would state a cause of action for breach of contract.

In determining a motion to dismiss pursuant to CPLR 3211 (a)(7), the court must decide whether the pleading, within its four corners, states a cause of action. (see Qualified Personal Residence Trust of Doris Rosen Margett, 137 AD3d 965 [2d Dept 2016] ).

Although conclusory allegations are insufficient to state a cause of action (see Caniglia v. Chicago Tribute New York News Syndicate, Inc., 204 AD2d 233 [1st Dept 1994), the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference and determine only whether the facts as alleged fit within any cognizable legal theory. (see Dee v. Rakower, 112 AD3d 204 [2nd Dept 2013] ).

Applying the above standard, the Court finds that the complaint, although not deftly written, alleges facts that state a cause of action for breach of contract.

The complaint states that defendant entered into an agreement for goods sold and delivered in the amount of $ 11,960, and that defendant defaulted under the terms of the agreement, by failing to make the payments in said sum. The complaint further states plaintiff demands judgment in the amount of $ 11,960, with interest from 05/09/2017, the date of the agreement, and that the action is plaintiff's attempt “to collect a debt.”

While the complaint does not explicitly state that plaintiff was a party to the contract, it alleges “the agreement” was in the amount of $ 11,960 which is “due,” and for which plaintiff “demands judgment” as a “debt” which plaintiff seeks “to collect.” This language reasonably implies that the plaintiff was the aggrieved party to the contract. According plaintiff “every possible inference,” the complaint alleges the existence of a valid contract between the parties.

The complaint further alleges that the contract was inter alia for “goods sold delivered” in the agreed amount of $ 11,960; and that “defendant defaulted on the payment” leaving “due” balance in the sum “11,960.”

Affording plaintiff reasonable inference, the foregoing paragraph infers that plaintiff's contractual obligation was to deliver goods to the defendant for the sum $ 11,960; and that plaintiff fulfilled that obligation, but defendant defaulted on the payment, which plaintiff now seeks to recover herein.

Defendant's further argument that the complaint fails to notice it of the essential facts of the action is further unavailing. A complaint must be declared legally sufficient where the court determines that “plaintiff would be entitled to relief on any reasonable view of the facts stated.” (see Campaign for Fiscal Equity, Inc. v. State of New York, 86 NY2d 307 [2002] ). In the case at bar, a reasonable view of the complaint is that it gives defendant notice that pursuant to a contract, plaintiff delivered goods to defendant for $ 11,960 which defendant failed to pay.

Based on the foregoing, defendant's motion to dismiss is denied.

Odessa Kennedy, J.

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