The following e-filed documents for Motion Sequence 1 listed by NYSCEF document numbers “3″, “4″, “10″, “11″, “12″, “14″ and attachments and exhibits thereto as well as the pro se plaintiff’s affidavit in opposition, which was not e-filed, have been read on this motion: Notice of Motion and Affidavits/Affirmations (Defendant) X Memorandum of Law in Support of Motion (Defendant) X Affidavit in Opposition (Plaintiff) X Reply Affirmation (Defendant) X The defendant moves this Court for an Order dismissing the plaintiff’s complaint pursuant to CPLR §3211(a)(1), §3211(a)(7) and §3211(a)(8) and submits an affirmation and memorandum of law in support of the motion. The plaintiff, who is pro se, opposes the defendant’s motion and submits an affidavit in opposition. The defendant submits a reply to the plaintiff’s opposition. The plaintiff commenced the instant proceeding against the defendant alleging a cause of action sounding in breach of contract. On or about February 18, 2021, the defendant presented the plaintiff with an employment offer letter (“Contract”) containing the terms of the plaintiff’s employment at Brookdale University Hospital and Medical Center Crisis Response between February 24, 2021 and May 22, 2021. Among the Contract’s terms, paragraph six states the plaintiff acknowledges her employment with the defendant is at-will and further defines at-will employment to mean that “either [the plaintiff or the defendant] may terminate or modify the employment relationship at any time, for any reason, with or without cause, and with or without notice.” The plaintiff accepted the proposed terms of employment by initialing and signing her name to the Contract on February 18, 2021 and began working on February 24, 2021. The plaintiff was required to complete an I9 form prior to commencing employment with the defendant. However, due to “technical issues,” the plaintiff submitted a partially notarized I9 form to the defendant on March 12, 2021. The defendant notified the plaintiff that the I9 form needed to be corrected and, in turn, the plaintiff requested explicit instructions as to where additional notarization was required. The defendant canceled the Contract after the plaintiff requested further instruction on filling out the I9 form and, as a result, the defendant allegedly breached the Contract causing the plaintiff to sustain $43,015.00 in damages. The plaintiff filed the summons and verified complaint with the Court on April 14, 2021. On or about April 21, 2021, the summons and verified complaint “was left by an unidentified person on the reception desk” at the defendant’s office located on San Diego, California. The summons and verified complaint were again served on defendant on or about May 1, 2021 “by an unidentified person to an unidentified woman” at defendant’s office located in San Diego, California. The defendant argues that the instant action should be dismissed because the plaintiff failed to properly serve the summons and complaint upon the defendant as service was effectuated on employees who are not officers, directors, managing or general agents, or cashiers or assistant cashiers or, any other agents authorized by the defendant or law to receive service. The defendant also contends that the plaintiff’s breach of contract claim fails based on documentary evidence. While the defendant concedes that the Contract is a valid, written agreement between the parties, there is no term “that obligates [d]efendant to compensate [p]laintiff or provide her with any remedy in the event [d]efendant exercised its right to terminate [p]laintiff’s at-will employment during the term of [p]laintiff’s work assignment.” In addition, the defendant asserts the plaintiff failed to state a claim for breach of contract because the complaint does not allege any facts about the nature or terms of the Contract with the defendant, “the contractual duties or obligations” the defendant “owed” to the plaintiff, the contractual terms entitling the plaintiff to the requested relief, or the specific term of the Contract that the defendant breached. In opposition, the plaintiff avers her “summons and complaint were delivered to the [defendant] by substituted service.” In particular, the summons and complaint “were left at the defendant’s headquarters…with a person of suitable age and discretion.” The summons and complaint were also “mailed by regular mail, in an envelope that says: “Personal and Confidential” to Mr. Alan Braynin, the Chief Executive for [the defendant]” at the same address where they were hand-delivered. The plaintiff further argues that even if she signed the at-will Contract, she was terminated five weeks after beginning her employment because “ she was trying by proper efforts to submit an I9 form.” According to the plaintiff, the I9 form required by the defendant was not completed properly “before the start date of the [C]ontract because [the defendant] did not make any resultative efforts to do so.” Applicable Law It has been widely held that “CPLR 311(a) provides that personal service on a corporation may be accomplished by, inter alia, delivering the summons ‘to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service’ (CPLR 311[a][1])” (Rosario v. NES Med. Servs. of N.Y., P.C., 105 A.D.3d 831, 832). “While a process server may generally rely upon the direction of corporation employees in delivering a summons, the process server’s reliance must necessarily be reasonable. Further, the service in question must be made ‘in a manner which, objectively viewed, is calculated to give the corporation fair notice’ of the action” (Todaro v. Wales Chemical Co., 173 A.D.2d 696, 697, quoting Fashion Page v. Zurich Ins. Co., 50 NY2d 265, 272). Ordinarily, an affidavit of service filed by plaintiff constitutes prima facie evidence that proper service was made on a defendant, and is sufficient to establish jurisdiction over the defendant (Bankers Trust Co. of California, N.A. v. Tsoukas, 303 AD2d 343, 343-344). However, “once jurisdiction and service of process are questioned, plaintiffs have the burden of proving satisfaction of statutory and due process prerequisites” (Stewart v. Volkswagen of Am., Inc., 81 N.Y.2d 203, 207). 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 Appellate Division, Second Department, has held that the Court starts with the presumption that the allegations contained in the plaintiff’s pleadings are true with respect to a motion to dismiss for failure to state a cause of action pursuant to CPLR §3211(a)(7). (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). “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.). DISCUSSION The first issue presented is not whether the defendant was served but whether the employees of the defendant were authorized to accept service. It is undisputed that the defendant is a corporation, therefore, service of the summons and complaint upon the defendant is required to be delivered on an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by defendant or by law to receive service (Rosario v. NES Med. Servs. of N.Y., P.C., 105 A.D.3d at 832). A hearing would typically be required to determine the validity of the plaintiff’s service of process of the summons and complaint considering the defendant’s challenge to the method of service. However, the necessity of a hearing to determine the validity of service of process is not necessary based upon plaintiff’s own opposition papers and a review of the e-filed documents that are available to this Court. While the plaintiff has not filed an affidavit of service, it appears that process was served on two different receptionists at the defendant’s main office. None of the evidence before this Court demonstrates that either of the defendant’s employees held themselves out to be a person authorized to accept service of process on the defendant’s behalf. In fact, one employee refused to provide the process server with her name. The process server’s reliance that the unidentified employee was authorized to accept service is unreasonable and, as such, the defendant cannot not objectively be considered to have had fair notice of plaintiff’s action (Todaro v. Wales Chemical Co., 173 A.D.2d at 697). Additionally, the plaintiff has not met her burden of proving she satisfied statutory and due process requirements as no affidavit of service evidencing that the defendant was properly served was filed with the Court (Bankers Trust Co. of California, N.A. v. Tsoukas, 303 AD2d at 343-344; Stewart v. Volkswagen of Am., Inc., 81 N.Y.2d at 207). Nevertheless, the plaintiff admits in her opposition that service of process on the defendant was improperly effectuated by “substituted service” whereby the summons and complaint were “left at the defendant’s headquarters…with a person of suitable age and discretion” and “mailed by regular mail, in an envelope that says: “Personal and Confidential” to Mr. Alan Braynin, the Chief Executive for [the defendant].” “Substituted service” is governed by CPLR §308 and applies to service of process on a natural person, not a corporation. Considering the defendant is a corporation rather than a natural, it was not properly served with the summons and complaint. Assuming arguendo that the defendant was properly served, the Court agrees that the plaintiff’s complaint should be dismissed based upon documentary evidence and the plaintiff’s failure to state a cause of action. 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 Contract is a valid, written agreement for the plaintiff’s temporary employment at Brookdale University Hospital and Medical Center Crisis Response between February 24, 2021 and May 22, 2021. The plaintiff asserts that the defendant breached the Contract when it terminated the plaintiff’s employment after asking “for instructions where exactly on the second page of [the] I9″ needed to be notarized. However, the summons and complaint failed to identify the clause of the Contract limiting the defendant’s right to terminate her at-will employment or the defendant’s obligation to pay the plaintiff damages upon the Contract’s termination (Reznick v. Bluegreen Resorts Mgt., Inc., 154 A.D.3d at 893). The plaintiff, therefore, has not plead the basic requirement to state a claim for breach of contract (Moore v. Johnson, 147 AD2d at 621; Reznick, 154 A.D.3d at 893). Moreover, the defendant refutes the plaintiff’s contention by submitting the Contract as documentary evidence and argues that it resolves all factual issues relating to the plaintiff’s termination (Scadura v. Robillard, 256 AD2d at 567). The Contract’s terms are unambiguous and its authenticity undisputed (Fontanetta v. John Doe 1, 73 AD3d at 86). As such, the Contract constitutes acceptable documentary evidence of the agreement between the plaintiff and the defendant and clearly states that “either [the plaintiff or the defendant] may terminate or modify the employment relationship at any time, for any reason, with or without cause, and with or without notice” (Id.). The ability to terminate the employment relationship with the plaintiff is not limited in scope. The defendant, therefore, was acting within it’s right to terminate the plaintiff for failing to correctly fill out the I9 form, or any other reason, and the Contract conclusively disposes of the plaintiff’s claim (Scadura, 256 AD2d at 567). Accordingly, it is hereby ORDERED, the defendant’s motion (Motion Sequence 001) seeking to dismiss the plaintiff’s complaint in its entirety pursuant to CPLR §§3211(a)(1), 3211(a)(7) and 3211(a)(8) is granted. This constitutes the decision and order of the Court. Dated: August 5, 2021
