DECISION & ORDER Upon the papers filed in support of the application and the papers filed in opposition thereto, and after hearing oral arguments, for the reasons set forth on the record it is ORDERED that Defendant Phillip Mai’s Motion #001 seeking an order to dismiss the Complaint pursuant to CPLR 3211(a)(1) and 3211(a)(7) is hereby granted. HISTORY This action was commenced by Kie Shoon Wong (hereinafter “Plaintiff”) against the defendants Zhi Wei Mai and his son Phillip Mai (hereinafter “Defendant Z. Mai,” “Defendant P. Mai”) on April 27, 2021. The Complaint alleges that the Defendants intended to buy a parcel of real property and asked the Plaintiff to lend them money for that purchase. According to the Complaint, on or about September 29, 2017, the Plaintiff deposited $80,000 into the Defendants’ account. The Complaint states that the “Defendants then tendered a written loan agreement to plaintiff promised to return the money loaned.” On or about May 10, 2018, the Defendants tendered two checks to repay the loan, however, the checks were returned for insufficient funds and the Defendants have since failed to repay the loan. Per the Complaint, on or about November 2019, the Defendants closed on a property located at 116 Comstock Avenue, Staten Island, New York 10314. Defendant P. Mai filed the Motion to Dismiss the Complaint for failure to state a cause of action and upon documentary evidence, pursuant to CPLR §3211(a)(1) and §3211(a)(7). DISCUSSION “A party may move for judgment dismissing one or more causes of action against him on the ground that a defense is founded upon documentary evidence.” CPLR §3211(a)(1). A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the “documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim.” Fontanetta v. Doe, 73 AD3d 78, 83 (2d Dept. 2010). “To be considered ‘documentary,’ evidence must be unambiguous and of undisputed authenticity.” Id. at 86. “To establish prima facie entitlement to judgment as a matter of law with respect to a promissory note, a plaintiff must show the existence of a promissory note, executed by the defendant, containing an unequivocal and unconditional obligation to repay, and the failure by the defendant to pay in accordance with the note’s terms.” Am. Realty Corp. of NY v. Sukhu, 90 AD3d 792, 793 [2d Dept. 2011]; Lugli v. Johnston, 78 AD3d 1133, 1135 [2d Dept. 2010]. Defendant also moved to dismiss the Complaint for failure to state a cause of action. CPLR 3211(a)(7) provides that “A party may move for judgment dismissing one or more causes of action asserted against him on the ground that…the pleading fails to state a cause of action.” The Court will consider “whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail.” Guggenheimer v. Ginzburg, 43 NY2d 268, 275 (1977). Courts have repeatedly granted motions to dismiss where the factual allegations in the claim were merely conclusory and speculative in nature and not supported by any specific facts.” See Residents for a More Beautiful Port Washington, Inc. v. Town of North Hempstead, 153 AD2d 727 [2d Dept. 1989]; Stoianoff v. Gahona, 248 AD2d 525 [2d Dept. 1998]. Allegations consisting of “bare bones legal conclusions, as well as factual claims flatly contradicted by documentary evidence are not entitled to such consideration.” See Simkin v. Blank, 19 NY3d 46, 52 [2012]. “Upon a motion to dismiss a complaint pursuant to CPLR 3211, a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff.” Morris v. Gianelli, 71 AD3df 965. 967 [2d Dept 2010]. A motion to dismiss should be granted where the Complaint fails to “contain allegations concerning each of the material elements necessary to sustain recovery under a viable legal theory.” Matlin Patterson ATA Holdings LLC v. Fed. Express Corp., 87 AD3d 836, 839 (1st Dept. 2011). Dismissal pursuant to CPLR 3211(a)(7) is warranted if the evidentiary proof disproves an essential allegation of the complaint, even if the allegations of the complaint, standing alone, could withstand a motion to dismiss for failure to state a cause of action. Korinsky v. Rose, 120 AD3d 1307, 1308 (2d Dept. 2014). In this case, the loan note, attached by the Plaintiff to the Complaint as Exhibit A, was handwritten in Chinese and included a certified translation. The loan note was signed only by Defendant Z. Mai on September 28, 2017. The note makes no reference to Defendant P. Mai. Defendant P. Mai submitted an affidavit in support of the Motion to Dismiss and states “the Note is written in Chinese, which I cannot read.” The Plaintiff, per the opposition papers submitted by counsel, is “suing for a return of money loaned/breach of contract” and claims that the Plaintiff agreed to loan the funds to both Defendants. The basic elements for a breach of contract cause of action are: (1) the existence of a contract, which includes an offer, acceptance, and adequate consideration, (2) plaintiffs performance, (3) defendants’ breach, and (4) damages resulting from the breach. See Dee v. Rakower, 112 AD3d 204, 208-209 [2d Dept. 2013]. A party contending that a contract exists “must accordingly allege in nonconclusory language…the essential terms of the parties’…contract, including those specific provisions of the contract upon which liability is predicated, whether the alleged agreement was, in fact, written or oral, and the rate of compensation.” Lapine v. Seinfeld, 31 Misc. 3d 736, 741 [Sup. Ct. New York Co. 2011]. In addition, to create a binding contract, there must be a “meeting of the minds, such that there is a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms.” Stonehill Capital Mgt. LLC v. Bank of the W., 28 NY3d 439,448 (2016). Further, as a necessary element of any enforceable contract, consideration can consist of either a benefit to the promisor or a detriment to the promise.” Halliwell v. Gordan, 61 AD3d 932, 933[ 2d Dept. 2009]. The documentary evidence, submitted by the Plaintiff, including the note, translation and checks returned for insufficient funds, was signed by the Defendant Z. Mai only. Based upon the documentary evidence, there is a valid contract between the Plaintiff and Defendant Z. Mai. The Defendant P. Mai was not a party to the contract. There was no meeting of the minds between the Plaintiff and Defendant P. Mai, nor was there any consideration, which is essential to an enforceable contract. Further, the Plaintiffs opposition to the motion included only an affirmation by counsel. “Where…the affirmation of an attorney is not based upon personal knowledge of the facts, it is of no probative or evidentiary significance.” Onewest Bank, FSB v. Michel, 143 AD3d 869, 871 [2d Dept. 2016]. Further, Plaintiff also failed to establish any evidentiary basis to suggest that discovery may lead to relevant evidence in this matter. See Lambert v. Bracco, 18 AD3d 619, 620 [2d Dept. 2005]. Relying only on the Complaint and the supported exhibits submitted by the Plaintiff, the Court finds that Defendant P. Mai is not a party to the contract. Further, though the Plaintiff claims that the funds were used for Defendant P. Mai to purchase a parcel of real property, the alleged purchase did not take place until November 2019, over two years after the money was loaned by Plaintiff to Defendant Z. Mai. The alleged benefit that Defendant P. Mai received is purely speculative. Courts have repeatedly granted motions to dismiss where the factual allegations in the claim were merely conclusory and speculative in nature and not supported by any specific facts.” See Residents for a More Beautiful Port Washington, Inc. v. Town of North Hempstead, 153 AD2d 727 [2d Dept. 1989]; Stoianoff v. Gahona, 248 AD2d 525 [2d Dept. 1998]. Based upon the foregoing and the documentary evidence proffered by the Plaintiff with the Complaint, the Court finds that Defendant P. Mai was not a party to the contract between the Plaintiff and Defendant Z. Mai. Plaintiff failed to state a cause of action against Defendant P. Mai. It is noted that neither fraud in the inducement or unjust enrichment has not been pled in the Complaint and has thereby not been considered by this Court. CONCLUSION Accordingly, it is ORDERED that Defendant Phillip Mai’s Motion #001 seeking an order to dismiss the Complaint pursuant to CPLR 3211(a)(1) and 3211(a)(7) is hereby granted. This constitutes the Decision and Order of the Court. Dated: October 12, 2021
