Kuris v. Wiz Kids Ctr.

1

2023 NY Slip Op 34511(U)

RUTHI KURIS, A/K/A RUTHINUDELMAN Plaintiff(s) v. WIZ KIDS CENTER INC., EUGENE PISHCHIKER, LARISA ZALVESKY, Defendant(s)

Index No. 503183/2022

Supreme Court, Kings County

December 7, 2023

Unpublished Opinion

PRESENT: HON. INGRID JOSEPH, J.S.C.

ORDER

Ingrid Joseph Judge

The following e-filed papers read herein: NYSCEF Nos.:

Notice of Motion/Affirmation in Support/Affidavits Annexed

Exhibits Annexed/Reply........... 5-8;

16 AffIrmation in Opposition/Affidavits Annexed/Exhibits Annexed............ 1-4; 10-11

In this matter, Wiz Kids Center Inc. ("Wiz Kids"), Eugene Pishchiker ("Pishchiker") and Larisa Zalevsky ("Zalevsky)) (Collectively "Defendants") move (Motion Seq. 1) for an order to dismiss Ruthi Kuris A/K/A Ruthi Nudelmans's ("Plaintiff) complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action. Plaintiff has opposed the motion.

This action arises out of an alleged contractual dispute wherein Plaintiff and Defendants entered into an agreement to own and operate a day care center named Wiz Kids Center Inc. located at 2403 Avenue X, Brooklyn, New York 11235.

In support of its motion, Defendants argue that Plaintiffs complaint must be dismissed for failure to state a cause of action because Plaintiff has failed to present claims sufficiently particular to provide the Defendants notice of the transactions and/or occurrences intended to be proved or the material elements of each cause of action as required by CPLR 3013. Defendants state that six of Plaintiff s causes of action are predicated on the allegation of the existence of a contract between parties, however Plaintiff has failed to allege whether the contract being relied on is oral or written. Furthermore, Defendants asserts that Plaintiff has failed to attach the relevant agreement, if written, or reference the specific provisions of the contract upon which liability is predicated, warranting dismissal of those claims. Additionally, Defendants claim that Plaintiffs cause of action to pierce the corporate veil must be denied as moot because a cause of action for piercing the corporate veil cannot stand alone without an underlying wrong to form the basis for an allegation of liability and Plaintiffs other causes of action sounding in breach of contract are insufficient. In the event that Plaintiffs causes of action survive, Defendants contend that the individual claims against Pishchiker and Zalevsky should be dismissed because the complaint does not allege that they acted outside of their capacity as officers of Wiz Kids or had any involvement with Plaintiffs dealings. Moreover, Defendants argue that since the complaint fails to state viable causes of action sounding in breach of contract that Pischchiker and Zalevsky cannot be said to have executed any form of a contract with the Plaintiff. Defendants request costs and attorney's fees for its preparation and participation in this matter.

In opposition, Plaintiff argues that she has provided ample documentary evidence annexed to her affidavit in opposition, demonstrating that there was a joint venture in place and an agreement existed between all parties to this suit. Plaintiff states that Defendants have failed to submit any evidence in support of their motion and that there are genuine issues of fact and law that need to be resolved, warranting denial of Defendants' motion. In her affidavit, Plaintiff states that she and Defendants agreed to jointly own and operate the subject day care center now known as Wiz Kids Center Inc. Plaintiff claims that she and Defendant Zalevsky were the signatories of a certain lease dated on or about April 17, 2018 and the guarantors of the lease obligations, using Plaintiffs licensure as a basis for the lease obligations and a permit that was issued in February of2019. Plaintiff contends that on or about January 13, 2021, she terminated her employment with Wiz Kids and informed the Defendants that they should find a replacement. for her, and the partnership was to be dissolved. Plaintiff states that she was denied all access to cameras, emails, and accounts related to the day care, while Defendants continued to use her license to operate the business. Consequently, Plaintiff alleges that Defendants materially breached the subject agreements between the parties and violated statutory laws.

Pursuant to CPLR 3025, a party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it. Under CPLR 3012, service of an answer or reply shall be made within twenty days after service of the pleading to which it responds. At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a) of CPLR 3211. Service of a notice of motion under subdivision (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve the pleading until ten days after service of notice of entry of the order (CPLR 3211[f]).

Here, Plaintiff filed its initial summons and complaint on February 1, 2022, and served a copy of the summons and complaint upon Defendants on March 28, 2022. Defendants timely filed and served their pre-answer motion to dismiss pursuant to CPLR 3211(a)(7) on April 8, 2022. On October 11, 2022, Plaintiff filed an Amended Verified Complaint without leave of the court. Pursuant to CPLR 3211(f), the Defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(7) extended the defendants time to answer and thus extended the time in which the plaintiffs could amend their complaint as of right (see also Rosas v Petkovich, 218 A.D.3d 814 [2d Dept. 2023]; Estate of Feenin v Bombace Wine & Spirits, Inc., 188 A.D.3d 1001 [2d Dept. 2020]).

Accordingly, Plaintiffs Amended Verified Complaint is deemed timely.

When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action (Leon v. Martinez, 84 N.Y.2d 83, 87 [1994]; Skefalidis v China Pagoda NY, Inc., 210 A.D.3d 925 [2d Dept. 2022]); Oluwo v Sutton, 206 A.D.3d 750 [2d Dept. 2022]; Sokol v Leader, 74 A.D.3d 1180 [2d Dept. 2010]). Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss (Eskridge v Diocese of Brooklyn, 210 A.D.3d 1056 [2d Dept. 2022]; Zurich American Insurance Company v City of New York, 176 A.D.3d 1145 [2d Dept. 2019]; EBCI Inc. v Goldman, Sachs & Co., 5 N.Y.3d [2005]).

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the burden never shifts to the non-moving party to rebut a defense asserted by the moving party (Sokol at 1181; Rovello v Orofino Realty Co. Inc., 40 N.Y.2d 970 [1976]). CPLR 3211 allows a plaintiff to submit affidavits, but it does not oblige him or her to do so on penalty of dismissal (Id.; Sokol at 1181). Affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint and such affidavits are not to be examined for the purpose of determining whether there is evidentiary support for the pleading (Id.; Rovello at 635; Nonon at 827). Thus, a plaintiff will not be penalized because he has not made an evidentiary showing in support of its complaint.

Unlike on a motion for summary judgment, where the court searches the record and assesses the sufficiency of evidence, on a motion to dismiss, the court merely examines the adequacy of the pleadings (Davis v. Boeheim, 24 N.Y.3d 262, 268 [2014]). The appropriate test of the sufficiency of a pleading is whether such pleading gives sufficient notice of the transactions, occurrence, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments (V. Groppa Pools, Inc. v. Massello, 106 A.D.3d 722, 723 [2d Dept 2013]; Moore v Johnson, 147 A.D.2d 621 [2d Dept 1989]).

To plead a cause of action for breach of contract, a plaintiff must allege (1) the existence of a contract, (2) plaintiffs performance pursuant to the contract, (3) defendant's breach of the contractual obligation; and (4) damages resulting from that breach (34-06 73, LLC v Seneca Insurance Company, 39 N.Y.3d 44 [2022]). Plaintiffs allegations must identify the provisions of the contract that were breached (Id.).

To plead a cause of action for unjust enrichment, a plaintiff must show (1) the defendant was enriched, (2) at the plaintiffs expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered (Mobarak v Mowad, 117 A.D.3d 998 [2d Dept. 2014]; Mandarin Trading Ltd. v Wildenstein, 16 N.Y.3d 173 [2011]). In instances where the complaint contains two counts for the same services, one under contract and one on quasi-contract, the plaintiff is not compelled on motion in advance of the trial to elect upon which count he will proceed, since plaintiff is entitled to plead inconsistent causes of action in the alternative (see generally CPLR § 3014; Katcher v Browne, 19 A.D.2d 744 [2d Dept. 1963]; Gold v 29-15 Queens Plaza Realty, LLC, 43 A.D.3d 866 [2d Dept. 2007]; Pickering v State. 30 A.D.3d 393 [2d Dept. 2006]; Perkins v Volpe, 146 A.D.2d 617 [1989]; Breslin Realty Dev. Corp. v 112 Leaseholds, 270 A.D.2d 299 [2d Dept. 2000]; Rubin v Cohen, 129 A.D. 395 [1908]). The statute of frauds does not bar unjust enrichment cause of action where it does not seek to enforce a promise but rather seeks to recover the reasonable value of property or...