Sutherland v. PBC Enters.

1

2022 NY Slip Op 33392(U)

MAURICIO SUTHERLAND, Plaintiff, v. PBC ENTERPRISES, INC., WALLACK MANAGEMENT CO., INC. KOJO SIMPSON ARCHITECT, PLLC, and ANC CONTRACTING CO., INC, Defendants.

Index No. 511668/2021, Motion Sequence Nos. 1, 2, NYSCEF Doc. No. 38

Supreme Court, Kings County

September 29, 2022

Unpublished Opinion

DECISION AND ORDER

HON CARL J. LANDICINO, J.S.C.

Recitation as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered (NYSCEP)

Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed 5-7, Opposing Affidavits (Affirmations).......................................................... 11,13-15, Reply Affidavits (Affirmations)................................................................

Memorandum of Law 8,12, 16

After a review of the papers and oral argument on the motion the Court finds as follows:

The Plaintiff Mauricio Sutherland (hereinafter the "Plaintiff") has commenced this action against Defendants PBC Enterprises, Inc. ("Defendant PBC"), Wallack Management Co., Inc. ("Defendant Wallack"), Kojo Simpson Architect, PLLC ("Defendant Kojo"), and ANC Contracting Co., Inc. ("Defendant ANC") (hereinafter referred to collectively as the "Defendants"). The dispute concerns a certain lease by and between the Plaintiff as tenant and Defendant PBC as landlord (the "Lease") for commercial space in a building known as 1251-71 Ralph Avenue, Brooklyn, New York (hereinafter the "Premises"). The Plaintiff was apparently interested in developing a nightclub at the Premises (hereinafter the "Project"). Defendant Wallack was allegedly the property manager of the Premises and Defendant Kojo was allegedly hired by Plaintiff as the architect to transform the Premises into a single space as a nightclub. Plaintiff alleges that Defendant PBC, Defendant Wallack, and Defendant Kojo knew of violations at the Premises that would not permit the Project to be completed notwithstanding the purported understanding that Plaintiff would expend significant capital to fund the project. Plaintiff further alleges that Defendant PBC sought Plaintiff s eviction without paying for the renovations Plaintiff performed at the Premises. The Plaintiff raises causes of action for breach of express/implied and/or quasi-contract, interference with prospective economic advantage, promissory estoppel and/or detrimental reliance, professional malpractice, breach of contract, and unjust enrichment.

Defendants PBC and Wallack (hereinafter referred to as the "Owner Defendants" or "Owners") now move (motion sequence #1) to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211(a)(1) and (7). The Owner Defendants contend that this action is governed by the terms of the Lease agreement and therefore, the first, second, third, and seventh causes of action as against them, respectively, should be dismissed. The Owners argue that the Lease provides that the Plaintiff accepted the Premises "as is," Plaintiff agreed that any improvements would be made at his sole cost and expense, and any improvements would become the property of PBC. The Owners also contend that the causes of action for tortious interference with prospective economic advantage, promissory estoppel and unjust enrichment are either improperly plead or duplicative of the breach of contract claim.

The Plaintiff opposes the motion. The Plaintiff contends that the Plaintiff and the Owners made several oral modifications of the Lease that support the Plaintiffs position and that dismissing the Plaintiffs complaint would provide the Owner Defendants with an unjust financial windfall. Specifically, the Plaintiff contends that he invested over Four Hundred Thousand ($400,000.00) dollars in the Premises and that as a result of the impact of the COVID-19 Pandemic the Project was suspended. Plaintiff further contends that during the Project suspension the Owner Defendants initiated an eviction proceeding that forced the Plaintiff to vacate the Premises.

Defendant Kojo also moves (motion sequence #2) to dismiss the complaint pursuant to CPLR 3211(a)(5) as the causes of actions as against Kojo are time-barred given that Defendant Kojo was allegedly terminated in 2015 and the action was commenced six years later on May 17, 2021. The Plaintiff opposes the motion. Specifically, the Plaintiff contends that the statute of limitations did not begin to run until he discovered Defendant Kojo's negligence and wrongdoing in January 2020. Plaintiff also contends that his time to commence an action was tolled pursuant to Executive Order 202.8 and the subsequent extension orders as a result of the Covid-19 pandemic. As a result, the Plaintiff contends that the tolling period should be added to the Plaintiffs time to commence.

On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove his or her claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss.

Kinnear v. Cefoli, 184 A.D.3d 628,123 N.Y.S.3d 509, 510 [2d Dept 2020].

Pursuant to CPLR §3013, "[s]tatements in a pleading should 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." Furthermore, "[although on a motion to dismiss plaintiffs allegations are presumed to be true and accorded every favorable inference, conclusory allegations - claims consisting of bare legal conclusions with no factual specificity - are insufficient to survive a motion to dismiss." Godfrey v. Spano, 13 N.Y.3d 358, 373, 892 N.Y.S.2d 272,278 [2009].

"[W]here evidentiary material is adduced in support of the motion, the court must determine whether the proponent of the pleading has a cause of action, not whether the proponent has stated one" (Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 46 A.D.3d 530,530 [2007]; see Meyer v. Guinta, 262 A.D.2d 463,464 [1999]). A motion to dismiss based on documentary evidence may be appropriately granted "only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law" (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 [2002]; see Leon v. Martinez, 84 N.Y.2d at 88, Lucia v. Goldman, 68 A.D.3d 1064,1065 [2009]; Mazur Bros. Realty, LLC v. State of New York, 59 A.D.3d 401,402 [2009]).

Feggins v. Marks, 171 A.D.3d 1014, 1015-6, 99 N.Y.S.3d 45, 47 [2d Dept 2019].

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(5) on statute of limitations grounds, the moving defendant must establish, prima facie, that the time in which to commence the action has expired." See Yang v. Oceanside Union Free Sch. Dist., 90 A.D.3d 649, 649, 933 N.Y.S.2d 905 [2d Dept 2011]. "As a general principle, the statute of limitations begins to run when a cause of action accrues (see CPLR 203 [a]), that is, 'when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court.'" Hahn Auto. Warehouse, Inc. v. Am. Zurich Ins. Co., 18 N.Y.3d 765, 770, 967 N.E.2d 1187 [2012], quoting Aetna Life & Cos. Co. v. Nelson, 67 N.Y.2d 169, 175, 492 N.E.2d 386 [1986]. However, a statute of limitations can be tolled, and the toll suspends the running of the statute of limitation and that period is excluded from calculating the statute of limitation. See Bermudez Chavez v. Occidental Chem. Corp., 35 N.Y.3d 492, 158 N.E.3d 93 [2020], reargument denied sub nom. Chavez v. Occidental Chem. Corp., 36 N.Y.3d 962,161 N.E.3d 480 [2021].

I. First Cause of Action Against Defendant PBC for Breach of Express, Implied and/or Quasi Contract

The Owner Defendants contend that the claims in Plaintiff s first cause of action as against Defendant PBC should be dismissed because the parties entered into the Lease and the Lease controls the relationship, rights and obligations of the parties to the Lease. The Owner Defendants point to the Lease as documentary evidence in support of this contention, and direct the Court to Articles 11, 39,42 and 49 of the Lease. Those articles state in pertinent part as follows:

Article 11 states:

All Improvements made by the Tenant to or upon the demised premises, except said trade fixtures, shall when made, at once be deemed to be attached to the freehold, and become the property of the Landlord, and at the end or other expiration of the term, shall be surrendered to the Landlord in as good order and condition as they were when installed, reasonable wear and damages by the elements excepted.

Article 39 (Use) states:

Tenant covenants and agrees that it shall use the leased premises solely as an office, including for the booking of parties and other events, and for no other purpose. Tenant warrants that such use shall be lawful and proper and does not and will not constitute a breach of any laws regulations, ordinances, or statutes, and that Tenant shall be and remain responsible for the legality of such use of the leased premises by Tenant, and that Tenant at its own cost and expense shall be responsible for legalizing such use and/or curing any violation with respect to such use and Landlord shall not be required to expend any monies to either obtain permission

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