The following electronically filed papers were read upon this motion: Notice of Motion/Order to Show Cause 4-16 Answering Papers 21 Reply 24 Briefs: Plaintiff’s/Petitioner’s 22-23 Defendant’s/Respondent’s 5 Decision/Order Plaintiff sues these defendants for compensation he claims he is owed in connection with the sale of real property located at 226 Further Lane, East Hampton, New York (the subject premises). Plaintiff alleges that he is owed at least $1,100,000.00, plus pre-judgment interest from October 31, 2015, for certain services he provided to the defendants with respect to the subject premises. The defendants move this Court for an Order dismissing the complaint pursuant to CPLR §§3211 (a)(1) and (a)(7). The defendants, who are a licensed real estate broker and brokerage, maintain that the complaint should be dismissed because the plaintiff is attempting to collect a portion of the commission for the sale of the subject premises, but plaintiff is not a licensed real estate broker, and he is therefore prohibited from collecting/splitting any commission pursuant to Real Property Law (RPL) §442 and from commencing a legal action seeking such commission (RPL §442-d). In support of their motion, the defendants submit, inter alia, the affirmation of Theresa K. Quigley, Esq., general counsel for defendant Saunders & Associates (Associates), various internal memos from Ms. Quigley to Associates, letters from plaintiff’s former counsel and from plaintiff himself, correspondence from defendants’ counsel in this matter addressed to plaintiff’s counsel, and a June 23, 2015 letter agreement between plaintiff and the sellers of the subject premises. 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 [2d Dept 1998]). “[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 [2d Dept 2010]). Affidavits do not constitute documentary evidence in the context of a motion brought pursuant to CPLR ‘ 3211 (a)(1) (Id. at 86). The letter correspondence, memos, and the affirmation of Ms. Quigley do not constitute documentary evidence within the meaning of CPLR §3211 (a)(1). The only submission that qualifies as documentary evidence is the June 23, 2015 letter agreement purportedly bearing plaintiff’s signature. The relevant portion of that letter agreement provides that, “[w]e are aware that you have acted as a consultant to one or more persons who have expressed an interest in potentially purchasing the premises listed above, which is owned by our client Quarter Mile Drive LLC (the ‘Property’). This will confirm that no commission will due or payable by our client or its members, beneficial owners or family members for any services you may provide to with respect to this matter whether negotiations to purchase the Property occur, a contract for the sale of the Property is executed, or title to the Property actually passes to one of the prospective purchases. Stated another way, our client and its members, beneficial owners or family members shall have no obligation to pay you any monies with respect to the Premises whatsoever.” In opposition to the instant motion, the Court notes that the plaintiff does not raise any dispute as to the authenticity of this letter agreement; however, this letter agreement does not resolve all factual issues as a matter of law, or conclusively dispose of plaintiff’s claims. The letter agreement establishes that whatever “consultant” services plaintiff may have provided to prospective buyers of the subject premises were not going to be paid for by the sellers of those premises. That said, the letter agreement does not imply, a fortiori, that plaintiff could not have also provided certain other services to defendants as alleged in his verified complaint. Accordingly, that branch of defendants’ motion seeking dismissal pursuant to CPLR §3211 (a)(1) is denied. Turning now to the request for dismissal for failure to state a cause of action, the Court is aware that when deciding a motion to dismiss pursuant to CPLR §3211(a)(7), the court must afford the complaint a liberal construction, accepting all facts as alleged in the complaint to be true, and according the plaintiffs the benefit of every favorable inference (see Marcantonio v. Picozzi III, 70 AD3d 655 [2d Dept 2010]). The sole criterion on a motion to dismiss is “whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cognizable action at law a motion for dismissal will fail” (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]; see also Miglino v. Bally Total Fitness of Greater New York, Inc., 20 NY3d, 342, 351 [2013]; Leon v. Martinez, 84 NY2d 83, 87-88, [1994]; Sokol v. Leader, 74 AD3d 1180, 1180-1181 [2d Dept 2010]; Gershon v. Goldberg, 30 AD3d 372, 373 [2d Dept 2006]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). “A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211 (a)(7) [citation omitted]” (Sokol, supra at 1181). “ When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it…dismissal should not eventuate” (Guggenheimer, supra at 275; see also Vertical Progression, Inc. v. Canyon Johnson Urban Funds, 126 AD3d 784 [2d Dept 2015]; YDRA, LLC v. Mitchell, 123 AD3d 1113 [2d Dept 2014]; Korsinsky v. Rose, 120 AD3d 1307 [2d Dept 2014]). “In sum, in instances in which a motion to dismiss made under CPLR 3211 (subd [a], par 7) is not converted to a summary judgment motion, affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint, although there may be instances in which a submission by plaintiff will conclusively establish that he has no cause of action. It seems after the amendment of 1973 affidavits submitted by the defendant will seldom if ever warrant the relief he seeks unless too the affidavits establish conclusively that plaintiff has no cause of action” (Rovello v. Orofino Realty Co., 40 NY2d 633, 636 [1976] [emphasis added]). The instant motion is being treated as it is noticed, as a motion for dismissal pursuant to CPLR §3211. The Court is not treating this motion as one for summary judgment pursuant to CPLR §3211(c). The complaint filed in this matter is verified by the plaintiff himself; therefore, it constitutes a sworn statement akin to an affidavit. Plaintiff asserts five causes of action sounding in breach of contract, unjust enrichment, breach of implied covenant of good faith and fair dealing, promissory estoppel, and quantum meruit. Plaintiff avers that in or around May 2015, he “was engaged” by the defendants “through architect Tony Ingrao in connection with the real property located at [the subject] premises.” Plaintiff further alleges that “[t]he purpose and scope of Collè’s engagement, as set forth in a verbal agreement between Collè and Defendants, was to provide his services and expertise, as well as his knowledge of local building codes and ordinances and his relationships through past dealings with various local Town/Village Boards regarding building, planning and zoning to provide a land analysis and thorough assessment of the buildability of the Premises and to assist in resolving the aforementioned issues that existed that could affect what could be built on the Premises including, but not limited to, setback issues, buildability issues such as gross floor area, swimming pool location issues, oil tank removal issues, environmental issues, beach access, tennis court locations, deed restrictions and various other issues.” Plaintiff further avers that he “was responsible for assembling teams of engineers, surveyors, environmental consultants, architects, and design professionals to assess the Premises and resolve issues existing thereon;” “to help achieve the maximum square footage allotment for building on the Premises.” He also claims to have worked with the architect “to figure out how to utilize the pre-existing conditions” to “obtain greater buildability.” According to plaintiff, he and the defendants “agreed that Colle would be compensated for the scope of services he provided, but such compensation would be deferred until after the sale of the Premises.” Also, plaintiff alleges in his complaint that he is not a licensed real estate broker and that he was not engaged to act as a broker in this matter; rather, according to him, his compensation “was for services rendered,” while the defendants’ responsibility was to negotiate and sell the subject premises. Plaintiff specifically states that he never held himself out as a real estate broker, that he never sought compensation from the defendants for acting as a real estate broker with respect to the sale of the subject premises, that he never negotiated the sale of the premises, and that he was not engaged to find a buyer for the premises. Ultimately, the subject premises were sold in late October or early November 2015. Plaintiff’s opposition to the instant motion asserts that since the services for which he seeks payment from the defendants were not related to the actual real estate transaction that occurred, he is not seeking a split of the commission, and, therefore, the RPL provisions relied upon by the defendants are not applicable to the circumstances in this matter. Plaintiff’s verified complaint stands in stark contrast to the affirmation of defendants’ general counsel, Theresa K. Quigley, Esq., together with the annexed memos and correspondence. Defendants take the position that there was never any contract, and plaintiff is improperly demanding a split of the commission on the sale of the subject premises. The letter of plaintiff’s former counsel, Robert J. Ward, Esq., stating that his “understanding that Andrew Saunders agrees that [plaintiff] is entitled to a half commission” tends to support defendants’ position on the instant motion, as does Ms. Quigley’s submitted affirmation wherein she states that “there would have been no reason for [defendants] to have retained plaintiff” to provide services concerning land use issues for the subject premises; according to Ms. Quigley, “[t]hat’s [her] job.” Clearly these contrasting positions cannot be resolved in the context of a pre-answer motion to dismiss for failure to state a cause of action. Plaintiff alleges the existence of a contract, the plaintiff=s performance under the contract, including his detailed recitation of the services that he allegedly provided to the defendants in connection with the subject premises, and the defendant=s breach of that contract, and resulting damages (JP Morgan Chase v. J.H. Electric of New York, Inc., 69 AD3d 802, 803 [2d Dept 2010]; Furia v. Furia, 116 AD2d 694 [2d Dept 1986]), “Where, as here, there is a bona fide dispute as to the existence of a contract, or where the contract does not cover the dispute in issue, a plaintiff may proceed upon a theory of quasi-contract as well as breach of contract, and will not be required to elect his or her remedies” at the stage of the proceedings where a pre-answer motion to dismiss has been made (Hochman v. LaRea, 14 AD3d 653, 654-655 [2d Dept 2005]; see also AHA Sales, Inc. v. Creative Bath Products, Inc., 58 AD3d 6, 20 [2d Dept 2008]). Plaintiff’s alternative claims sounding in unjust enrichment, breach of implied covenant of good faith and fair dealing, promissory estoppel, and quantum meruit, are sufficiently pled. The complaint adequately alleges that defendants were enriched at plaintiff’s expense, and that it is against equity and good conscience to permit the defendants to retain what plaintiff seeks to recover (Trotta v. Ollivier, 91 AD3d 8 [2d Dept 2011]), and that plaintiff performed the services in good faith, that defendants accepted his services, that plaintiff expected compensation after the sale of the premises, and that the value of his services is in the sum of $1,100,000.00 (see Johnson v. Robertson, 131 AD3d 670 [2d Dept 2015]). Furthermore, the complaint sufficiently states a cause of action for breach of implied covenant of good faith and fair dealing by alleging that plaintiff and defendants agreed that plaintiff would provide the enumerated services in connection with the subject premises, and despite defendants’ repeated assurances that plaintiff would be paid, the defendants have refused to pay plaintiff any portion of the agreed-upon compensation (see 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 153 [2002]). Finally, plaintiff sufficiently alleges that he relied upon the defendants’ promise to pay him a minimum of $1,100,000.00 for the enumerated services performed by him in connection with the subject premises, and that plaintiff “would not have agreed to the engagement and performed the services under the scope of the parties’ agreement if he knew the Defendants’ promise was false and made in bad faith and that Defendants would refuse to pay [plaintiff] under the false premise that payment would be a violation of the New York Real Property Law.” Whether any of plaintiff’s claims will be substantiated as discovery proceeds forward is not presently a consideration for this Court. At this juncture, the complaint is sufficient to withstand a motion to dismiss pursuant to CPLR §3211 (a)(7) as to all causes of action alleged therein. Accordingly, the defendants’ motion to dismiss the complaint on this basis is likewise denied. The foregoing constitutes the Decision and Order of this Court. FINAL DISPOSITION [] NON-FINAL DISPOSITION [X] Dated: March 18, 2022
