The following e-filed documents for Motion Sequence 1 and Motion Sequence 2, listed by NYSCEF document numbers “3″, “4″, “9″, “11″, “12″, “13″, “16″, “17″, “18″, “19″ attachments and exhibits thereto have been read on this motion: Notice of Motion and Affidavits/Affirmations (Defendant) X Memorandum of Law in Support of Motion (Defendant) X Notice of Cross-Motion and Affidavits/Affirmations (Plaintiff) X Memorandum of Law in in Opposition to Motion and in Support of Cross-Motion (Plaintiff) X Reply Memorandum of Law in Support of Motion and in Opposition to Cross-Motion (Defendant) X Reply Memorandum of Law for Cross-Motion (Plaintiff) X The defendant moves this Court for an Order pursuant to CPLR §3211(a)(7) and §3211(a)(1) dismissing the plaintiff’s causes of action and submits an affirmation and memorandum of law in support of the motion. The plaintiff opposes the defendant’s motion and cross-moves for an order partially converting the defendant’s motion to dismiss into a motion for summary judgement with respect to the plaintiff’s cause of action for breach of contract, awarding judgment to the plaintiff on its first claim for breach of contract, and setting the matter down for a trial on damages pursuant to CPLR §3212(c). The plaintiff submits an affirmation and memorandum of law in opposition to the defendant’s motion and in support of its cross motion. The defendant submitted a reply and opposition to the plaintiff’s cross motion. The plaintiff submits a reply to the defendant’s opposition. The plaintiff commenced the instant proceeding against the defendant alleging four causes of action sounding in breach of contract, quasi-contract/restitution, unjust enrichment, and breach of implied covenant of good faith and fair dealing. The defendant is a member of Southwest Quadrant Pupil Transportation Cooperative. On May 22, 2019, the Southwest Quadrant Pupil Transportation Cooperative issued a Request for Bids for Pupil Transportation, which states that bidders are bound “to the conditions and requirements set forth in” the request for bids and “such conditions shall form an integral part of each purchased contract by the Participating Districts of the Southwest Quadrant.” The plaintiff submitted a bid, which was calculated on a route-based basis rather than per pupil basis in accordance with the defendant’s directions. The plaintiff won the bid and the parties entered into a Transportation Contract on August 21, 2019 (hereinafter referred to as the “Transportation Contract”). The “Total Anticipated Annual Cost” of the Transportation Contract is “$47,882.00.” On March 16, 2020, Nassau County Executive Laura Curran issued an emergency order closing all Nassau County schools and canceling all school activities for five days in response to the COVID19 health crisis. On the same day, New York State Governor Andrew Cuomo issued an Executive Order closing schools from March 18, 2020 through April 1, 2020. Three subsequent Executive Orders extended the schools’ closure and ultimately suspended in-person instruction for the remainder of the school year. Despite the schools having been closed for in-person instruction by Executive Order, the plaintiff was required to “maintain a constant state of readiness to resume operations” on short notice if the school closures were not extended. To that end, the plaintiff “continued paying fixed and ongoing costs” associated with maintaining its fleet of school buses and personnel. The plaintiff claims the defendant breached the Transportation Contract by failing to pay the plaintiff $16,492.00, representing the total balance of the monthly payments for half of March, April, May, and June. The defendant argues that the instant action should be dismissed because the plaintiff’s complaint fails to specify the provision of the Transportation Contract the defendant breached and, as such, the plaintiff’s allegations are conclusory. The defendant submits the Southwest Quadrant Pupil Transportation Cooperative’s Request for Bids for Pupil Transportation and the Transportation Contract as evidence of its contention. While the defendant concedes the Transportation Contract is a valid, written agreement between the parties, it asserts that the Transportation Contract does not require payment to the plaintiff when transportation is not provided. Rather, payment is made on a per pupil basis. Additionally, the plaintiff’s claims for quasi-contract/restitution, unjust enrichment, and breach of implied covenant of good faith and fair dealing are duplicative as there is no dispute regarding the existence of the Transportation Contract. In opposition, the plaintiff avers its complaint sufficiently and clearly states that the defendant’s failure to pay for the last three and a half months of a ten-month contract constitutes a breach of the defendant’s payment obligation under the Transportation Contract. The plaintiff claims it is not required to specify which provision of the Transportation Contract was breached and the documentary evidence provided by the defendant, namely Southwest Quadrant Pupil Transportation Cooperative’s Request for Bids for Pupil Transportation and the Transportation Contract, are not dispositive of all questions of law and fact. In particular, the documents do not expressly state that payment is contingent on continuously providing transportation during the ten-month term. The plaintiff further argues that the terms of the Transportation Contract are ambiguous. Nevertheless, the Transportation Contract does not contain an early termination, force majeure or “Act of God” provision or, a provision allowing the defendant to reduce the number of needed vehicles to zero to terminate its payment obligation. Regarding its claim for quasi-contract/restitution, unjust enrichment, and breach of implied covenant of good faith and fair dealing, the plaintiff argues said causes of action are sufficiently pled because the defendant “knowingly accepted and benefited” from the plaintiff’s services, who acted in “good faith to maintain the infrastructure necessary…to transport students immediately upon notice that” schools were reopening. With respect to the cross motion, the plaintiff argues it has demonstrated that the Transportation Contract requires the defendant to pay the plaintiff a guaranteed minimum payment of $47,882.00 based on a 180-day school year, payable in ten monthly installments. Despite the plaintiff remaining ready, willing, and able to provide transportation services if schools reopened, the defendant failed to pay the plaintiff $16,492.00 of the $47,882.00 required by the Transportation Contract. The plaintiff contends that the defendant’s failure to remit payment, coupled with the parties’ course of conduct in prior agreements, entitles the plaintiff to summary judgment for its claim of breach of contract. In response, the defendant argues that, even the plaintiff’s allegations are accepted as true, the breach of contract claim should be dismissed for failing to cite the provision that was breached by the defendant. The defendant maintains that the plaintiff did not remedy the defect in the complaint in its opposition to the motion to dismiss and, therefore, has not met its burden in alleging a cause of action for breach of contract. Applicable Law It is well established that with respect to a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211(a)(7), the Court starts with the presumption that the allegations contained in the plaintiff’s pleadings are true. (Becker v. Schwartz, 46 NY2d 401, 408). A motion for failure to state a cause of action “will fail if from [the] complaint’s four corners, [its] factual allegations are discerned which taken together manifest any cause of action cognizable of law, regardless of whether the plaintiff will ultimately prevail on the merits.” (Gruen v. County of Suffolk, 187 AD2d 560). However, while the criteria in determining whether a complaint will withstand a motion pursuant to CPLR §3211(a)(7) is whether the pleadings state a cause of action discerned from the four corners of the pleadings, (Guggenheimer v. Ginsburg, 43 NY2d 268), the court is required to determine whether the proponent of the pleading has a cause of action, and not whether the proponent has merely stated a cause of action. (Meyer v. Guinta, 262 AD2d 463). The test to be applied is whether the complaint “gives sufficient notice of the transactions, occurrences, 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.” (Moore v. Johnson, 147 AD2d 621). Unless the defendant can demonstrate that there is no factual issue as claimed by the plaintiff, the motion to dismiss should be denied (S & J Serv. Ctr., Inc. v. Commerce Commercial Group, Inc., 178 A.D.3d 977, 979). In order to succeed on a motion to dismiss based upon documentary evidence, “the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim” (Scadura v. Robillard, 256 AD2d 567). “[I]t is clear that judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts and any other papers, the contents of which are ‘essentially undeniable,’ would qualify as ‘documentary evidence.’” (Fontanetta v. John Doe 1, 73 AD3d 78, 84-85). “The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of his or her contractual obligations, and damages resulting from the breach.” (Reznick v. Bluegreen Resorts Mgt., Inc., 154 A.D.3d 891, 893). “Generally, a party alleging a breach of contract must demonstrate the existence of a…contract reflecting the terms and conditions of their…purported agreement…. A complaint that offers only conclusory allegations without pleading the pertinent terms of the purported agreement requires a court to speculate as to the parties involved and the conditions under which the alleged contract was formed. In order to state a cause of action to recover damages for a breach of contract, the plaintiff’s allegations must identify the provisions of the contract that were breached.” (internal quotation marks and citations omitted). (Id.). It is well recognized that “[t]he existence of a valid and enforceable written contract governing a particular subject matter precludes recovery in quasi contract for events arising out of the same subject matter. (Gargano v. Morey, 165 A.D.3d 889, 892, quoting Amrusi v. Nwaukoni, 155 AD3d 814, 815, 65 NYS3d 62). “[T]he theory of unjust enrichment lies as a quasi-contract claim and contemplates an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties. Thus, ‘[a] cause of action predicated on a theory of implied contract or quasi-contract is not viable where there is an express agreement that governs the subject matter underlying the action (internal citations omitted).” (Cortazar v. Tomasino, 150 A.D.3d 668, 669-670). Similarly, a cause of action for breach of an implied covenant of good faith and fair dealing must be dismissed if it is merely duplicative of a breach of contract cause of action. (Id.). The Court has widely held that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact. (Andre v. Pomeroy, 35 NY2d 361). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact. (Cauthers v. Brite Ideas, LLC, 41 AD3d 755). The Court’s analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the defendant. (Makaj v. Metropolitan Transportation Authority, 18 AD3d 625). To satisfy its burden, “[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v. New York University Medical Center, 64 NY2d 851, 853), and the proponent “must do so by tender of evidentiary proof in admissible form.” (Zuckerman v. City of New York, 49 NY2d 557, 562). DISCUSSION To begin, the defendant’s motion (Motion Sequence 001) seeks dismissal of the plaintiff’s complaint and, as such, the Court begins with the presumption that the allegations asserted in the complaint are true. (Becker v. Schwartz, 46 NY2d at 408). With respect to the plaintiff’s cause of action for breach of contract, it is undisputed by the parties that the Transportation Contract is a valid, written agreement for pupil transportation. The plaintiff asserts that the Transportation Contract covered “the period from September 1, 2019 through to [sic] June 30, 2020″ and was “approved by the Superintendent of Schools in accordance with the provisions of the Education Law, section 3625 and is duly executed by the Board of Education (i.e. the District) and the Superintendent and an authorized party of the [p]laintiff.” The plaintiff alleges it performed the services required under the Transportation Contract from mid-March to June 2020 by maintaining a state of readiness to transport students if in-person instruction resumed on short notice. The complaint also provides that the defendant breached the Transportation Contract when it “unilaterally” refused to pay the plaintiff’s invoices totaling $16,492.00 for half of March, April, May, and June of 2020. Without payment from the defendant, the plaintiff’s business will allegedly be irreparably harmed as it cannot meet payroll obligations and is at risk of losing a “substantial percentage” of the plaintiff’s workforce. The crux of the plaintiff’s breach of contract claim is the defendant’s failure to pay the remainder of the anticipated annual cost set forth in the Transportation Contract. Despite not specifically citing the provision of the Transportation Contract the defendant allegedly breached, the terms within the four corners of the Transportation Contract clearly state the defendant’s anticipated annual cost for the plaintiff’s transportation services was $47,882.00. Further, the parties agree that: (i) the Transportation Contract exists; (ii) they are parties to the Transportation Contract; and (iii) the Transportation Contract was awarded pursuant to the Southwest Quadrant Pupil Transportation Cooperative’s Request for Bids for Pupil Transportation. As such, the complaint sufficiently pleads the term of the Transportation Contract that was allegedly breached, the parties involved and the conditions under which the alleged contract was formed. (Reznick v. Bluegreen Resorts Mgt., Inc., 154 A.D.3d. at 893). The plaintiff, therefore, has offered the defendant sufficient notice of the series of transactions or occurrences intended to be proved and pleads the basic requirements to state a claim for breach of contract. (Moore v. Johnson, 147 AD2d at 621; Reznick, 154 A.D.3d at 893). There being no dispute as to the existence of the Transportation Contract and the plaintiff having sufficiently stated a cause of action for breach of contract, the plaintiff’s remaining causes of action for quasi-contract/restitution, unjust enrichment, and breach of implied covenant of good faith and fair dealing are duplicative and should be dismissed. (Gargano v. Morey, 165 A.D.3d at 892; Cortazar v. Tomasino, 150 A.D.3d at 669-670). Turning to the plaintiff’s cross-motion (Motion Sequence 002), the Court is not convinced the plaintiff has established that there are no questions of fact regarding the defendant’s alleged breach of the Transportation Contract. The plaintiff argues the Transportation Contract, “when read as a whole,” guarantees the plaintiff a “minimum payment based on a 180-day school year” payable in monthly installments, which the defendant admittedly stopped paying. However, the plaintiff buttresses its argument with the premise that the defendant’s past practice and “course of conduct since 2012″ demonstrates that the defendant previously paid the plaintiff for unexpected school closures such as during inclement weather, Superstorm Sandy, and September 11, 2001 and, as such, cannot unilaterally stop its payment obligations due to the COVID-19 health crisis. Yet, the plaintiff has not submitted evidentiary proof in admissible form to substantiate this premise. (Zuckerman v. City of New York, 49 NY2d at 562). Thus, the plaintiff failed to meet its burden of eliminating all issues of fact, which renders an award of summary judgment inappropriate. (Cauthers v. Brite Ideas, LLC, 41 AD3d at 755; Winegrad v. New York University Medical Center, 64 NY2d at 853). Accordingly, it is hereby ORDERED, that the branch of the defendant’s motion (Motion Sequence 001) seeking to dismiss the plaintiff’s cause of action for breach of contract is denied, and it is further ORDERED, that the branches of the defendant’s motion seeking to dismiss the plaintiff’s causes of action for quasi-contract/restitution, unjust enrichment, and breach of implied covenant of good faith and fair dealing is granted, and it is further ORDERED, that the plaintiff’s cross motion (Motion Sequence 002) seeking to convert the defendant’s motion to dismiss into a motion for summary judgement with respect to the plaintiff’s cause of action for breach of contract, award the plaintiff summary judgment on its first claim for breach of contract, and set matter down for a trial on damages pursuant to CPLR §3212(c) is denied. This constitutes the decision and order of the Court. Dated: June 9, 2021
