SALEM v. FISCHMAN (2018)

The following decision applies to motion seq. no. 001 and motion seq. no. 002.

Plaintiff Khaled Salem (“Salem”), as a member of the Hungry Bunny Café, LLC, leased commercial property from 301 H & G Associates, L.P. (“301 H & G”). Defendants Doreen Fischman, Esq. and Fischman & Fischman (collectively “Fischman”) represented 301 H & G in drafting and executing the lease agreement. Defendant Steve Anderson (“Anderson”) is an agent of 301 H & G. Plaintiff sues to recover $3,000,000 alleging that defendants purposefully wrote the wrong address in the commercial lease agreement resulting in lost income and profits on the business. Defendants now bring this pre-answer motion, pursuant to CPLR sections 3211 (a)(1), (3211(a)(3) and 3211(a)(7), to dismiss the complaint. Plaintiff also moves, in motion seq. 002, to consolidate this action with pending actions in the commercial division and landlord/tenant courts.

Plaintiff's Lack of Standing

On a defendant's motion to dismiss based upon the plaintiff's alleged lack of standing, pursuant to CPLR 3211(a)(3), the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law (see HSBC Mtge. Corp. [USA] v. MacPherson, 89 AD3d 1061, 1062). To defeat the motion, a plaintiff must submit evidence which raises a question of fact as to its standing (see U.S. Bank N.A. v. Faruque, 120 AD3d 575, 578; Deutsche Bank Natl. Trust Co. v. Haller, 100 AD3d 680, 683). To the extent a defendant seeks to dismiss the complaint based upon documentary evidence, pursuant to CPLR section 3211(a)(1), the motion will succeed only if “the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 (citation omitted); Leon v. Martinez, 84 NY2d 83, 88).

Defendants argue that neither they nor plaintiff are parties to the commercial lease agreement. Defendants annex as an exhibit the commercial lease agreement, identifying Hungry Bunny Café as the tenant and 301 H & G as the landlord. None of the named defendants signed the lease agreement. While Salem signed the lease as a member of Hungry Bunny Café, this neither created privity of contract between he and the defendants nor did it confer standing for Salem to sue in his own name (see 527—9 Lenox Ave. Realty Corp. v. Ninth Street Associates, et al., 200 AD2d 531 [holding that the appellants were not parties to the underlying conveyance and, thus, had no standing to raise the issue of lack of consideration] ). In the court's review of the papers, then, it sees no evidence of plaintiff's standing to sue in his name on behalf of Hungry Bunny Café. Accordingly, the motion to dismiss for lack of standing, pursuant to CPLR 3211(a)(3), is granted.

Accordingly, it is hereby

ORDERED that the defendants' motion to dismiss this action is granted and the Clerk is directed to enter judgment in favor of defendants dismissing this action, together with costs and disbursements to defendants, as taxed by the Clerk upon presentation of a bill of costs; and it is further

ORDERED that plaintiff's motion to consolidate is denied as moot.

Robert R. Reed, J.