Jason Kesselman, Plaintiff–Appellant, v. LLC (2026)

Order and judgment (one paper), Supreme Court, New York County (Gerald Lebovits, J.), entered on or about June 17, 2025, which to the extent appealed from as limited by the briefs, amended a prior order, entered on about November 1, 2024, by striking and replacing the first sentence of that order, and granted defendants' motion to dismiss the amended complaint, unanimously affirmed, with costs.  Appeal from order, same court and Justice, entered on or about November 1, 2024, which granted defendants' motion to dismiss the amended complaint, unanimously dismissed, without costs, as subsumed in the appeal from the order and judgment.

Supreme Court properly dismissed plaintiff's claims for breach of contract, breach of fiduciary duty, and unjust enrichment as utterly refuted by documentary evidence (CPLR 3211[a][1];  see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002]).  The communications between the parties demonstrate that plaintiff and the individual defendant mutually reached an accord regarding the end of their business relationship, including plaintiff agreeing to a new 63/37 percentage split of the profits, accepting an offer of an additional $826,000 payment, and providing wire transfer instructions (see Denburg v. Parker Chapin Flattau & Klimpl, 82 N.Y.2d 375, 383, 604 N.Y.S.2d 900, 624 N.E.2d 995 [1993];  Rosenthal v. Quadriga Art, Inc., 105 A.D.3d 507, 508, 963 N.Y.S.2d 192 [1st Dept. 2013]).  These communications, corroborated by plaintiff's in-court admission, also demonstrate that defendant executed the agreement by wiring the money satisfaction (see Denburg, 82 N.Y.2d at 383, 604 N.Y.S.2d 900, 624 N.E.2d 995).  They further demonstrate that the agreed-upon amount was less than plaintiff believed he was owed, thus satisfying the requirement that there be a bona fide dispute as to the amount due (see Complete Messenger & Trucking Corp. v. Merrill Lynch Money Mkts., Inc., 169 A.D.2d 609, 610–611, 565 N.Y.S.2d 794 [1st Dept. 1991];  see also Manse v. Hossington, 205 N.Y. 33, 36, 98 N.E. 203 [1912]).

Supreme Court also properly dismissed the misrepresentation claim, as the communications demonstrate the absence of detrimental reliance (CPLR 3211[a][1];  see J.A.O. Acquisition Corp. v. Stavitsky, 18 A.D.3d 389, 390, 795 N.Y.S.2d 569 [1st Dept. 2005]).  “Where a principal and fiduciary are sophisticated parties engaged in negotiations to terminate their relationship ․ the principal cannot blindly trust the fiduciary's assertions” (Centro Empresarial Cempresa S.A. v. América Móvil, S.A.B. de C.V., 17 N.Y.3d 269, 279, 929 N.Y.S.2d 3, 952 N.E.2d 995 [2011]).

Documentary evidence may include electronic communications such as emails, text messages, and, as here, WhatsApp messages, where they conclusively establish the asserted defense (see 4720 Third Ave. Hous. LLC v. CA Ventures LLC, 211 A.D.3d 417, 418, 180 N.Y.S.3d 87 [1st Dept. 2022];  Langer v. Dadabhoy, 44 A.D.3d 425, 426, 843 N.Y.S.2d 262 [1st Dept. 2007], lv denied 10 N.Y.3d 712, 861 N.Y.S.2d 272, 891 N.E.2d 307 [2008];  see also Popescu v. Austin, 2022 N.Y. Slip Op. 31275[U], *3, 2022 WL 1125814 [Sup. Ct., New York County 2022]).  Plaintiff sent the messages from an account identified as his own, whereby he accepted the offer of settlement (see Matter of Philadelphia Ins. Indem. Co. v. Kendall, 197 A.D.3d 75, 79–80, 151 N.Y.S.3d 392 [1st Dept. 2021]).

The remaining claims fail to state a cause of action for relief (CPLR 3211[a][7]).  Specifically, the allegations supporting plaintiff's unfair competition due to the misappropriation of his entity's trade name are “speculative and conclusory” (31 Cornelia Props. Corp. v. Lemma, 136 A.D.3d 584, 585, 25 N.Y.S.3d 593 [1st Dept. 2016];  see generally ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 477–479, 850 N.Y.S.2d 366, 880 N.E.2d 852 [2007]).  Similarly, the statutory claim alleges no “actual or threatened” adoption of his entity's trade name and fails to seek “to enjoin and restrain such actual or threatened violation,” the exclusive remedy under the statute (General Business Law § 133;  see Fusha Japanese Rest., Inc. v. Fusha, 17 A.D.3d 226, 227, 793 N.Y.S.2d 43 [1st Dept. 2005];  Eilat Limousine Serv. for All, Inc. v. Eilat Car & Limousine Serv., 221 A.D.2d 272, 273, 634 N.Y.S.2d 86 [1st Dept. 1995]).

We have considered plaintiff's remaining arguments and find them unavailing.