The following e-filed documents, listed by NYSCEF document number (Motion 003) 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 118, 121, 122, 123 were read on this motion to Dismiss.The following e-filed documents, listed by NYSCEF document number (Motion 005) 124, 125, 126, 127, 133, 154, 155, 156, 157, 158, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170 were read on this motion to Dismiss.DECISION AND ORDER Upon the foregoing documents, it is hereby ordered that defendants’ respective motions to dismiss are granted in part and denied in part, and plaintiffs’ cross-motion to amend their complaint and expedite discovery is granted in part and denied in part.This case arises from a series of merchant cash agreements (“MCAs”) allegedly between plaintiffs, James Davis II and Medisale, Inc., and defendants. Plaintiffs commenced this action by asserting the following seven causes of action: (1) void or reform agreements; (2) concealment of funds/constructive trust/transfer in fraud of creditors; (3) RICO; (4) accounting; (5) disclosure of confidential information; (6) violations of General Business Law (“GBL”) §§130, 133 and 301; and (7) violations of GBL §349.Defendants Influx Capital Group LLC, GTR Source LLC, Addy Source LLC, Tzvi Reich and Tsvi Davis (hereinafter, the “Reich/Davis defendants”) now move, pursuant to CPLR 3211(a)(1), (7), and (8) to dismiss the complaint as against those defendants.Defendant Jonathan Braun (“Braun”) also moves, pursuant to CPLR 3211(a)(1) and (7), to dismiss the complaint as against him. Plaintiffs cross-move for leave to amend their complaint and for expedited discovery.As an initial matter, this Court finds that service upon defendants Tzvi Reich and Tsvi Davis was proper, pursuant to CPLR 308(2), and accordingly the Reich/Davis defendants’ motion to dismiss pursuant to CPLR 3211(a)(8) is denied.The law on the dismissal of a complaint pursuant to CPLR 3211 is clear and well-settled. Dismissal pursuant to CPLR 3211(a)(1) is warranted where the documentary evidence submitted conclusively establishes as a matter of law a defense to the asserted claims. Leon v. Martinez, 84 NY2d 83, 88 (1994); accord; Warberg Opportunistic Trading Fund, L.P. v. GeoResources, Inc., 112 AD3d 78, 82-83 (1st Dept 2013) (“[d]ismissal under CPLR 3211(a)(1) is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law”). Dismissal pursuant to CPLR 3211(a)(7) is warranted where, after accepting the facts alleged as true and according plaintiff the benefit of every possible favorable inference, the court determines that the allegations do not fit within any cognizable legal theory. Leon v. Martinez, supra, 84 NY2d at 87-88; see also EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 (2005) (“[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus” in determining a motion to dismiss for failure to state a cause of action). A complaint survives a motion to dismiss for failure to state a cause of action if it gives the court and the parties “notice” of what is intended to be proved and the material elements of a cause of action. CPLR 3013.The Court finds that, with the exception of their fifth cause of action, entitled “disclosure of confidential information,” plaintiffs have pleaded facts sufficient to survive a motion to dismiss pursuant to CPLR 3211. Contrary to the arguments advanced by all moving defendants, plaintiffs’ first cause of action, although labeled “void or reform agreements,” sounds in breach of contract, and plaintiffs are entitled to discovery in furtherance of that claim.Giving plaintiffs “the benefit of every possible favorable inference,” the second, third, fourth, sixth, and seventh causes of action similarly survive a motion to dismiss. Plaintiffs’ third cause of action adequately asserts claims for violations of the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”) by alleging conduct of an enterprise through a pattern of racketeering activity. Fleetwood Servs., LLC, v. Complete Bus. Sols. Grp. Inc., 2019 WL 1558087 (E.D. PA Apr. 10, 2019) (denying defendant’s motion to dismiss a RICO claim based on an MCA agreement and finding that allegations that defendants engaged in a scheme to defraud by intentionally mispresenting the enforceability of the MCA were sufficient to survive a motion under CPLR 3211).Additionally, as the origins of this action stems from how much money plaintiffs owe and how much defendants have already debited from plaintiffs’ account, plaintiffs’ fourth cause of action, for an accounting, survives a motion to dismiss.Furthermore, the Court finds that plaintiffs’ allegations that defendants marketed their MCA services online to the public alleges enough of a consumer ambit under the GBL §349 to survive a motion under CPLR 3211. New York v. Feldman, 210 F Supp 2d 294, 301 (S.D.N.Y. 2002) (finding that the critical question in evaluating a claim pursuant to GBL §349 “is whether the matter affects the public interest in New York, not whether the suit is brought by a consumer”).The Court has considered defendants’ other arguments in their motions to dismiss and finds them to be unavailing.Finally, plaintiffs’ cross-motion is granted solely to the extent of allowing plaintiffs leave to serve an amended complaint, provided that such amended complaint not include its cause of action for “disclosure of confidential information,” which is hereby dismissed. Plaintiffs are directed to serve an amended complaint within 30 days of the date of this order. Plaintiffs’ application for expedited discovery is denied.ConclusionFor the reasons stated herein, defendants’ motions to dismiss the complaint are granted solely to the extent of dismissing the fifth cause of action for “disclosure of confidential information,” and are otherwise denied, and plaintiffs’ cross-motion is granted solely to the extent of allowing plaintiffs leave to serve an amended complaint.Dated: 5/28/2019CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED GRANTED IN PART X OTHERAPPLICATION: SETTLE ORDER SUBMIT ORDERCHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
