NFA GROUP v. LOTUS RESEARCH INC (2020)

DECISION & ORDER

In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated September 4, 2018.  The order granted that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

In February 2017, the plaintiff and the defendant entered into a written license and distribution agreement.  Subsequently, the plaintiff commenced this action to recover damages for breach of contract.  The defendant moved to dismiss the complaint, inter alia, pursuant to CPLR 3211(a)(7) for failure to state a cause of action.  The Supreme Court granted that branch of the defendant's motion, and the plaintiff appeals.

“On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts alleged by the plaintiff as true and liberally construe the complaint, according it the benefit of every possible favorable inference” (Dee v. Rakower, 112 A.D.3d 204, 208, 976 N.Y.S.2d 470;  see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  Canzona v. Atanasio, 118 A.D.3d 841, 842, 988 N.Y.S.2d 637).  Evidentiary material submitted by the plaintiff in opposition to such a motion may be considered to remedy defects in the complaint (see Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636, 389 N.Y.S.2d 314, 357 N.E.2d 970;  Way v. City of Beacon, 96 A.D.3d 829, 830–831, 947 N.Y.S.2d 531;  Dana v. Shopping Time Corp., 76 A.D.3d 992, 994, 908 N.Y.S.2d 114).

“[T]o state a cause of action to recover damages for a breach of contract, the plaintiff's allegations must identify the provisions of the contract that were breached” (Barker v. Time Warner Cable, Inc., 83 A.D.3d 750, 751, 923 N.Y.S.2d 118;  see Sutton v. Hafner Valuation Group, Inc., 115 A.D.3d 1039, 1042, 982 N.Y.S.2d 185;  Woodhill Elec. v. Jeffrey Beamish, Inc., 73 A.D.3d 1421, 1422, 904 N.Y.S.2d 232;  Peters v. Accurate Bldg. Inspectors Div. of Ubell Enters., Inc., 29 A.D.3d 972, 973, 815 N.Y.S.2d 484).  Here, the complaint failed to specify the provisions of the parties' agreement that were allegedly breached.  Further, the evidentiary material the plaintiff submitted in opposition to the defendant's motion failed to remedy the defect in the complaint (see Barker v. Time Warner Cable, Inc., 83 A.D.3d at 751–752, 923 N.Y.S.2d 118;  Woodhill Elec. v. Jeffrey Beamish, Inc., 73 A.D.3d at 1422, 904 N.Y.S.2d 232;  Lester v. Braue, 25 A.D.3d 769, 769–770, 808 N.Y.S.2d 778).

Accordingly, we agree with the Supreme Court's determination to grant that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.

SCHEINKMAN, P.J., RIVERA, ROMAN and CHRISTOPHER, JJ., concur.