ABDO SALEH v. Nabil Alghazali, Defendant. (2026)

This is a breach-of-contract action brought by plaintiffs, Mohamed Algazali and Abdo Saleh, against defendant, Nabil Alghazali. Plaintiffs allege that the parties entered into an contract to acquire and operate a deli store, under which they would provide proportionate shares of the capital necessary. Plaintiffs claim that defendant failed to pay his proportion of the expenses or uphold their agreement for him to manage and operate the store, resulting in damages of $98,000.

Defendant moves to dismiss under CPLR 3211 (a) (7) and (a) (8). The motion is granted in part and denied in part.

DISCUSSION

I. Defendant's Motion to Dismiss for Lack of Personal Jurisdiction

Defendant contends that the action should be dismissed under CPLR 3211 (a) (8) because this court lacks personal jurisdiction. This branch of defendant's motion is denied.

There is no merit to plaintiffs' first personal-jurisdiction argument: that defendant's jurisdictional challenge has been waived because defendant has also challenged the pleading sufficiency of plaintiff's claims. (See NYSCEF No. 9 at ¶¶ 21-22). Under CPLR 3211 (e), a personal-jurisdiction objection is waived only if a party moves on other grounds "without raising such objection." Here, defendant preserved the personal-jurisdiction defense by raising both (a) (7) and (a) (8) grounds for dismissal in the same timely motion.

Defendant's request for dismissal on personal-jurisdiction grounds is nonetheless denied. It is undisputed that defendant is a New York State domiciliary and conducts business in New York State. (See NYSCEF No. 7 at ¶¶ 3-4.) No more is required for this court to have authority to exercise personal jurisdiction over defendant. The fact that defendant may reside (and operate a business) outside New York County goes to venue, not to personal jurisdiction.

Defendant also contends on reply that venue has not been properly laid in New York County. This court disagrees. CPLR 503 (a) provides that "the place of trial shall be in the county in which one of the parties resided when it was commenced" or the county "in which a substantial part of the events or omissions giving rise to the claim occurred." As defendant concedes, plaintiff Algazali resides in New York County. (See NYSCEF No. 1 at ¶ 5 [complaint]; NYSCEF No. 10 at ¶ 11 [reply aff.].) Venue in this county is proper.

II. Defendant's Motion To Dismiss for Failure to State a Cause of Action:

Defendant also contends that plaintiffs' claims should be dismissed under CPLR 3211 (a) (7) for failure to state a cause of action. This branch of defendant's motion is granted in part and denied in part.

A. The Motion to Dismiss Plaintiffs' Breach-of-Contract Claim

A plaintiff must allege four elements to state a breach-of-contract claim: (1) the existence of a contract, (2) plaintiff's performance pursuant to the contract, (3) the defendant's breach of that contract, and (4) resulting damages. (See Morris v 702 E. Fifth St. HDFC, 46 AD3d 478, 479 [1st Dept 2007].) Under CPLR 3013, a pleading must be "sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense."

Defendant argues that plaintiffs have failed to meet the necessary particularity standard by failing to provide the contract or specifically detailing their own performance. However, "[p]laintiff[s] need not cite the specific provisions of the contract it alleged was violated to avoid dismissal." (Winston Salem RI LLC v Ladder Capital Fin. LLC, 217 AD3d 555, 556 [1st Dept 2023].) Plaintiffs have sufficiently alleged that the parties entered into an agreement to operate the store, that plaintiffs performed by contributing their share of the store's expenses, and that defendant breached by not managing the store and contributing his portion of the expenses. (See NYSCEF No. 1 at ¶¶ 2-3). No more is required at this stage of the litigation.

B. The Motion to Dismiss Plaintiff's Claim for Breach of Implied Covenant of Good Faith and Fair Dealing

Plaintiffs' second cause of action is for breach of the implied covenant of good faith and fair dealing. A breach-of-implied-covenant claim is subject to dismissal as duplicative of a breach-of-contract claim when "both claims arise from the same facts and seek the identical damages for each alleged breach." (Amcan Holdings, Inc. v Can. Imperial Bank of Commerce, 70 AD3d 423, 426 [1st Dept 2010].) Here, plaintiff has not alleged distinct facts supporting its breach-of-covenant claim, nor sought different damages. Instead, plaintiff's complaint alleges only that defendant violated the implied covenant of good faith by breaching the parties' contract. (See NYSCEF No. 1 at ¶ 14.) The motion to dismiss the second cause of action is granted.

Accordingly, it is

ORDERED that defendant's motion to dismiss is granted only with respect to plaintiff's second cause of action (for breach of the implied covenant), and otherwise denied; and it is further

ORDERED that the parties are directed to appear before this court for a telephonic preliminary conference on June 26, 2026.

DATE 6/12/2026

Gerald Lebovits, J.