AQUINO v. Faith Hope Consolo, et al., Defendants. (2017)

Order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about December 22, 2016, which, insofar as appealed from as limited by the briefs, granted the motion of the Douglas Elliman defendants to dismiss the first, fourth and fifth causes of action of the amended complaint, with limited leave to replead the first cause of action, unanimously modified, on the law, to permit plaintiff to replead the fourth and fifth causes of action, and as so modified, affirmed, without costs.  Appeal from order, same court and Justice, entered on or about October 24, 2016, unanimously dismissed, without costs, as superseded by the December 22, 2016 order.

 The motion court correctly dismissed the first, fourth and fifth causes of action.  The court appropriately determined that the complaint failed to state a breach of contract claim since it neither alleged an express nor an implied agreement that the parties mutually agreed upon.  As such, there were no terms to be breached (see Peters v. Accurate Bldg. Inspectors Div. of Ubell Enters., Inc., 29 A.D.3d 972, 973, 815 N.Y.S.2d 484 [2d Dept. 2006];  see also Flores v. Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d 363, 369, 795 N.Y.S.2d 491, 828 N.E.2d 593 [2005] ).  Additionally, the court properly dismissed the unjust enrichment claim as it failed to explain why the benefit retained by the Douglas Elliman defendants was unjust (see Sperry v. Crompton Corp., 8 N.Y.3d 204, 215, 831 N.Y.S.2d 760, 863 N.E.2d 1012 [2007] ), and the quantum meruit claim as it did not establish the reasonable value of the services plaintiff provided to said defendants (see Freedman v. Pearlman, 271 A.D.2d 301, 304, 706 N.Y.S.2d 405 [1st Dept.2000] ).

However, in addition to the motion court's limited grant of leave to replead the first cause of action, we grant leave to replead the fourth and fifth causes of action (see CPLR 3025[b];  170 W. Vil. Assoc. v. G & E Realty, Inc., 56 A.D.3d 372, 372, 868 N.Y.S.2d 36 [1st Dept.2008] [leave to replead is freely granted absent prejudice or surprise] ).  At this juncture it cannot be determined, as a matter of law, that plaintiff will be unable to allege the requisite elements of his various causes of action (see Slabakis v. Schik, 154 A.D.3d 407, 60 N.Y.S.3d 813 [1st Dept.2017], citing Davis v. Scottish Re Group Ltd., 138 A.D.3d 230, 236, 238, 28 N.Y.S.3d 18 [1st Dept.2016] ).

Accordingly, plaintiff has leave to serve an amended complaint repleading the breach of contract claim insofar as it pertains to the commissions that he has not received, but which have now become due and/or accrued, and as to the deductions allegedly taken by Douglas Elliman.  Furthermore, plaintiff is granted leave to replead the unjust enrichment and quantum meruit causes of action as Douglas Elliman disputes whether a contract was ever entered into (see American Tel. & Util. Consultants v. Beth Israel Med. Ctr., 307 A.D.2d 834, 835, 763 N.Y.S.2d 466 [1st Dept.2003];  Kramer v. Greene, 142 A.D.3d 438, 441–442, 36 N.Y.S.3d 448 [1st Dept.2016];  Eastern Consol. Props., Inc. v. Waterbridge Capital LLC, 149 A.D.3d 444, 444–445, 52 N.Y.S.3d 306 [1st Dept.2017];  Farina v. Bastianich, 116 A.D.3d 546, 548, 984 N.Y.S.2d 46 [1st Dept.2014] ).