The following papers having been read on this motion: Order to Show Cause (Plaintiff) 1 Opposition 2 Order to Show Cause (Defendants) 3 Opposition 4 Notice of Motion (Defendants) 5 Opposition 6 Reply 7 Plaintiff moves herein for an order, pursuant to CPLR §6301, to restrain all bank accounts in the name of any of the Defendants pending a resolution or final determination on the merits of this action. Defendants have opposed that application and have crossed-moved by order to show cause to lift said restraints; furthermore, by separate motion, Defendants have also cross-moved to dismiss, pursuant to CPLR §3211(a)(1) and (a)(7). Based upon the following, Plaintiff’s order to show cause is hereby granted to the limited extent set forth below, Defendants’ order to show cause is hereby granted in part and denied in part, and the cross-motion to dismiss by Defendant’s is also denied. The within action was commenced by Plaintiff on or about October 15, 2020, upon the filing of a summons and complaint, asserting causes of action sounding in breach of contract and for attorneys’ fees. On that very same day, Plaintiff had an order to show cause presented before this Court, seeking to restrain all funds any accounts in the name of any of the Defendants on hand with eleven (11) separate entities, including Bank of America, Capital One Bank, JPMorgan Chase, Metabank, Ponce De Leon Federal Bank, Robinhood, TD Bank, Victoria State Bank/Northfield Bank, Switch Commerce, Payment Alliance International, and Tek Card Payments, The application, submitted ex parte, stated in pertinent part that Defendants owed a sum of money based upon a contract to Plaintiff, that Defendants consented to such restraint of their accounts in the event of default pursuant to the terms of that agreement, that Defendants had misappropriated investment funds of Plaintiff, and that Defendants Karm and Karm have already transferred some of Plaintiff’s money overseas. The Court signed a temporary restraining order as requested on October 16, 2020, pending the instant decision and order. On a motion seeking a preliminary injunction, the burden of proof is on the movant to demonstrate a likelihood of success on the merits, the prospect of irreparable injury if the relief is withheld, and a balancing of the equities in the movant’s favor. Gagnon Bus Co., Inc. v. Vallo Transportation, Ltd., 13 AD3d 334, 786 NYS2d 107 (2nd Dept., 2004). Moreover, preliminary injunctive relief is a drastic remedy which will not be granted unless a clear right thereto is established under the law and the undisputed facts upon the moving papers, and the burden of showing an undisputed right rests upon the movant. Blake Agency v. Leon, 283 AD2d 423, 723 NYS2d 871 (Mem) (2nd Dept., 2001). The purpose of a preliminary injunction is to maintain the status quo, not to determine the ultimate rights of the parties. Shake Shack Fulton Street Brooklyn, LLC v. Allied Property Group LLC, 177 AD3d 924, 112 NYS3d 196 (2nd Dept., 2019). The decision to grant or deny a preliminary injunction lies within the sound discretion of the court. See Arcamone-Makinano v. Britton Property, Inc., 83 AD3d 623, 920 NYS2d 362 (2nd Dept., 2011). After a thorough review of all the moving papers submitted herein, this Court finds that Plaintiff has not satisfied its burden on the motion outside of one single bank account with Capital One. First, the status quo would not be maintained by the continued restraint on multiple bank accounts across eleven separate institutions, since there is insufficient evidence that any of the subject accounts are holding amounts due and owing to Plaintiff in the first place. More importantly, the agreement between the parties permitted Plaintiff to debit each weekday the sum of one thousand dollars ($1,000.00) from one specific Capital One Bank account ending 5675, and there is not any evidence before the Court that Defendants moved any of the funds from this account to any other account that is the subject of the current restraining order. This overly broad restraint appears unnecessary to balance the equities in Plaintiff’s favor. Second, Plaintiff has failed to demonstrate a likelihood of success on the merits. By Plaintiff’s own admission, both in an affidavit from its principal as well as stated in the complaint, it was supposed to debit one thousand dollars ($1,000.00) every weekday commencing on June 8, 2020, and would receive twenty-five thousand dollars ($25,000.00) by the first of every month from Defendants for which Defendants would contact Plaintiff’s principal via email to arrange such payments; to date, Defendants had paid approximately four hundred forty-seven thousand, five hundred dollars ($447,500.00) toward the agreement. The terms of the contract are clear that there is no prepayment penalty; however, the terms of the agreement are unclear as to how any prepayment would be applied. Thus, given the large amount of payments in excess of what had been due and owing to Plaintiff, the Court is unable to determine if Defendants are actually in arears on their obligation, or have obviated the need to make any payments whatsoever to Plaintiff for several months, and whether in fact a breach has occurred by Defendants. Finally, with respect to the irreparable harm Plaintiff might suffer if all of the subject accounts are restrained, the current record before the Court fails to give credence to the original allegations from Plaintiff’s principal. The affidavit from each of Defendants Karim and Karim do not suggest any relations overseas, any transfer of money overseas, or that they are interested in leaving the metropolitan area. Plaintiff’s affidavit is unsupported by any factual basis of the allegations asserted therein that Defendants were an actual flight risk to it. Given the circumstances surrounding this case, the Court finds that a continuation of the preliminary injunction currently in place would be improper. On the other hand, the parties did have an agreement that permitted Plaintiff to restrain Defendants accounts if there was an event of default without limitation. Therefore, the application by Plaintiff for a preliminary injunction against Defendants accounts is hereby denied except that Capital One account ending 5675, which was the subject account Plaintiff was permitted to debit from under the agreement, shall remain restrained until further order of this Court. Coinciding with this, Defendant’s order to show cause is hereby granted to the extent that all accounts for which Plaintiff has requested a restraining notice is hereby lifted forthwith except the Capital One account ending 5675. All other request for relief in the respective orders to show cause not specifically addressed in the foregoing shall be deemed denied herein. Turning now to Defendants’ cross-motion to dismiss, a motion to dismiss a complaint based on CPLR §3211(a)(1) may be granted only in instances where the documentary evidence utterly refutes Plaintiff’s factual allegations conclusively and establishes a defense as a matter of law. Ginsberg Development Co. v. Carbone, 85 AD3d 1110, 926 NYS2d 156 (2nd Dept., 2011). To be considered documentary under the statute, the evidence must be unambiguous, of undisputed authenticity, and its contents be essentially undeniable. Fontanetta v. Doe, 73 AD3d 78, 898 NYS2d 569 (2nd Dept., 2010). Affidavits, deposition testimony, and letters alone are not considered documentary evidence under CPLR §3211(a)(1). Attias v. Costiera, 120 AD3d 1281, 993 NYS2d 59 (2nd Dept., 2014). Pursuant to CPLR §3211(a)(7),when reviewing such a motion, the court must afford the pleading a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Reznick v. Bluegreen Resorts Mgmt., Inc., 154 AD3d 891, 62 NYS3d 460 (2nd Dept., 2017). A motion to dismiss made pursuant to CPLR §3211(a)(7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law. Clarke v. Laidlaw Transit, Inc., 125 AD3d 920, 5 NYS3d 138 (2nd Dept., 2015). Defendants have not submitted any documentary evidence to conclusively determine Plaintiff’s allegations are indeed false or that establishes an affirmative defense against Plaintiff’s claims. A review of the complaint satisfies for this Court that Plaintiff has properly stated a cause of action against Defendant for breach of contract (see Magge-Boyle v. Reliastar Life Insurance Company of New York, 173 AD3d 1157, 105 NYS3d 90 [2nd Dept., 2019]; see also Princes Point LLC v. Muss Development LLC, 30 NY3d 127, 65 NYS3d 89 [2017]), and the corresponding claim for attorneys’ fees pursuant to that contract (see LG Funding, LLC v. Johnson and Son Locksmith, Inc., 170 AD3d 1153, 96 NYS3d 640 [2nd Dept., 2019]). Thus, the motion by Defendant pursuant to CPLR §3211(a)(1) and (a)(7) is properly denied. Plaintiff shall file and serve a copy of the within order with notice of entry upon Defendants within thirty (30) days from the date of this order. In addition, within ten (10) days from the date of this order, Plaintiff shall serve a copy of the within order by overnight mail upon each institution in which a restraining notice was served upon previously. All restraints put in place upon the signing of the order to show cause dated October 16, 2020, are hereby lifted forthwith except the restraint on Capital One account ending 5675. Such restraint on Capital One account ending 5675 shall remain in full force and effect until further order of this Court. Defendants shall have until January 29, 2021, to file and serve an answer to the instant complaint. Thereafter, the parties are directed to complete a preliminary conference stipulation and order on or before April 22, 2021, so that they may enter into an agreement setting out a discovery schedule. Failure to complete said stipulation and order may result in the parties being required to appear before this Court. This hereby constitutes the decision and order of this Court. Dated: December 14, 2020
