The following e-filed documents, listed by NYSCEF document number (Motion 007) 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER). DECISION ORDER ON MOTION Plaintiff, a dealer in purchasing cars in the United States and selling them in China, commenced an action for fraud, unjust enrichment, and related claims seeking to recover $927,335 that she paid for a number of cars that were never delivered. Plaintiff now moves pursuant to CPLR 3212 for summary judgment on a breach of contract claim that was not pled in her complaint. Defendants oppose plaintiff’s motion. BACKGROUND In May 2013, plaintiff Man Kwan Ng and co-defendant Mei Li (Li) formed a company named K&G International Trading, Inc (K&G). Plaintiff, the president of K&G, owned eighty percent of the company and Li twenty percent. As relevant here, the parties’ business relationship operated as follows: Li’s husband, codefendant Yonghe Ye, would inform K&G about the cars available for purchase; K&G would purchase the cars from Ye’s companies in the United States — Long River International New York, Inc. (Long River), Ocean Breeze NY Inc. (Ocean Breeze), North Port International NY Inc. (North Port), and LYI Intertrade, Inc. (LYI); Ye would then ship those cars to China to be sold; K&G would wire the funds for the purchase of the cars to either one of Ye’s companies or directly to the car seller. The parties did not enter into a written agreement defining the scope of their responsibilities. The business appeared to be running smoothly until 2014 when, according to plaintiff, she neither received the thirteen cars for which K&G paid, nor did she receive a refund. In the months between June and October 2014, Ye requested from K&G a payment of $568,750 for seven luxury cars. K&G wired the payments to North Port, LYI, and Long River. Ye, through his companies, purchased the cars from a company named LA Auto Deals 4 Less (LA Auto). Plaintiff alleges that sometime between November 2013 through January 2014, Ye entered into an agreement with LA Auto for the purchase of an additional six Ford “Raptor” cars on behalf of K&G for $358,585. Plaintiff claims that Ye caused K&G to wire the payment for the six Ford “Raptors” in part directly to LA Auto, and in part to Ye’s entities. Plaintiff claims that K&G never received the cars and the payment was never returned. In March 2015, Long River and Ocean Breeze filed an action against LA Auto, its president, and an individual named Tony Hong Wang, in New York State Supreme Court, Queens County, entitled Long River International New York, Inc., et; al. v. LA AutoDeals 4 Less, Index No. 702286/2015, seeking damages for breach of contract, unjust enrichment, and conversion. In that action, the plaintiffs claimed that they paid LA Auto for several cars that were supposed to be delivered to K&G, but the cars were never delivered, and the money paid for the cars was never returned (NYSCEF # 104 — Ye tr dated November 7, 2018 at 105:25-106:8). After an inquest, the court awarded judgment in favor Long River and Ocean Breeze in the amount of $507,700.90 (NYSCEF #124 — Judgment). Collection efforts have failed. While there is no written agreement governing the subject transactions, on or about November 14, 2014, after the alleged breach, K&G, Ocean Breeze, and another company named EBM Development Co. Ltd. (EBM), entered into a guarantee agreement wherein Ocean Breeze agreed to guarantee the loan in the amount of $1 million from EMB to K&G (NYSCEF # 121 — guarantee agreement). The guarantee agreement states that “Ocean Breeze…is the management and operational company for K & G…. It is responsible for all the transactions and decisions for K & G [] such as car purchasing, car exporting, and the price mark-up” (id.; NYSCEF # 100 — verified complaint,
9-10). Plaintiff signed the guarantee agreement on behalf of K&G, and Ye signed on behalf of Ocean Breeze. DISCUSSION Plaintiff first contends that a contract was formed between plaintiff and Ye for each car purchase since Ye would send plaintiff and a K&G employee the information for K&G to purchase the subject cars, and K&G purchased them. Plaintiff argues that Ye breached the agreements by failing to deliver the cars or refunding the payment. Essentially, plaintiff’s position is that the agreement to purchase the cars was between plaintiff and Ye, and K&G provided the funds to purchase the cars. In opposition, defendants disagrees with plaintiff about the formation of any contracts between Ye and plaintiff. Specifically, defendants contend that the e-mails sent by Ye for the purchase of certain cars were sent to EBM, and not to plaintiff individually, and that Ye did not receive consideration for the cars (NYSCEF # 128, e-mails). Defendants further contend that he was acting as the principal of Ocean Breeze when he requested funds from plaintiff to purchase the cars. Defendants also contend that the motion should be denied as against co-defendant Li as she was not involved in running the company. Defendants further argue that plaintiff’s remaining causes of action should be dismissed pursuant to CPLR 3212(c). In reply, plaintiff contends that Ye’s testimony demonstrates that he entered into the contracts an individual. Specifically, plaintiff contends that Ye consistently referred to himself when describing his part in entering into the agreements. Plaintiff further contends that defendants are judicially estopped from arguing that the parties did not enter into contracts to purchase cars. Plaintiff concedes that codefendant Li may not be liable under a breach of contract claim. Thus, the motion is denied as to Li. Initially, while the cause of action for breach of contract was not pleaded, summary judgment may be awarded “if the proof supports such cause and if the opposing party has not been misled to its prejudice” (Rubenstein v. Rosenthal, 140 AD2d 156, 158 [1st Dept 1988]; see Valenti v. Camins, 95 AD3d 519, 522 [1st Dept 2012]; Boyle v. Marsh & McLennan Companies, Inc., 50 AD3d 1587, 1588 [4d Dept 2008]). The complaint here alleged sufficient facts to place defendants on notice of a possible cause of action for breach of contract (NYSCEF # 100 — complaint,
