JD2 REALTY MANAGEMENT LLC v. EVOJETS LLC (2023)

Order, Supreme Court, New York County (Lyle E. Frank, J.) entered on or about July 25, 2022, which granted defendants’ CPLR 3211 motions to dismiss the complaint, unanimously modified, on the law, to reinstate plaintiff's breach of contract cause of action against defendant Evojets LLC, and otherwise affirmed, without costs.

The court should not have dismissed the breach of contract claim against defendant Evojets.  The affidavit from an employee at defendant My Jet Saver and Evojets’ counsel's affirmation averring that the delay in plaintiff's return flight was due to a mechanical issue with defendant My Jet Saver's plane were not documentary evidence within the meaning of CPLR 3211(a)(1), and were insufficient to utterly refute plaintiff's allegation that one or both defendants intentionally rebooked plaintiff's flight to serve a higher-paying customer (see e.g. Mamoon v. Dot Net Inc., 135 A.D.3d 656, 657, 25 N.Y.S.3d 85 [1st Dept. 2016]).  Nor was plaintiff required, pre-discovery, to specify which defendant allegedly rebooked the flight (CPLR 3211[d];  see e.g. Pappas v. Pilevsky, 225 A.D.2d 394, 394, 640 N.Y.S.2d 747 [1st Dept. 1996]).

The unjust enrichment claim was properly dismissed because plaintiff's written contract with Evojets governs the subject matter of this dispute (see e.g. Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388–389, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987]).

The court properly dismissed the complaint as against My Jet Saver.  As an alleged third-party beneficiary, plaintiff would be bound by the venue selection clause in the contract between My Jet Saver and Evojets, which specified venue for “any claim” “shall” be in Miami–Dade County, which makes venue there mandatory (Spirits of St. Louis Basketball Club, L.P. v. Denver Nuggets, Inc., 84 A.D.3d 454, 455, 922 N.Y.S.2d 349 [1st Dept. 2011], lv denied 17 N.Y.3d 710, 2011 WL 4356347 [2011];  see Highland Crusader Offshore Partners, L.P. v. Targeted Delivery Tech. Holdings, Ltd., 184 A.D.3d 116, 122, 124 N.Y.S.3d 346 [1st Dept. 2020]).  Plaintiff has not established that a trial in Florida “would be so gravely difficult and inconvenient that [plaintiff] would, for all practical purposes, be deprived of [its] day in court” (Sterling Natl. Bank v. Eastern Shipping Worldwide, Inc., 35 A.D.3d 222, 222, 826 N.Y.S.2d 235 [1st Dept. 2006]).

We have considered the parties’ remaining contentions and find them unavailing.