The following numbered papers read on this motion by defendants Charles Morant, Nemfodog, Incorporated, and Nemfodog Merger LLC (moving defendants), for an order pursuant to CPLR §3211(a)(1) and (7), dismissing the complaint dated December 21, 2021, pursuant to CPLR §6514(a), cancelling and vacating of record the Notice of Pendency attached to the complaint, and pursuant to CPLR §6514(c), and 22 NYCRR §30-1.1, awarding moving defendants, as a sanction, the recovery of their attorneys’ fees, costs, and disbursements in making this motion. Papers Numbered Notice of Motion — Affidavits — Exhibits EF 20-32 DECISION/ORDER Upon the foregoing papers, it is ordered that the motion is determined as follows: This is an action asserting several causes of action sounding in recoupment, breach of the implied covenant of good faith and fair dealing, unjust enrichment, unlawful dissolution of property interests to third parties without mutual consent, and pursuant to Article 15 of RPAPL, compelling the determination of ownership claims/interests upon the property located at 114-60 Merrick Boulevard, in the County of Queens. Plaintiff William Seaberry (plaintiff) has alleged that, as President of Nemfodog, Incorporated, he executed an indenture agreement which gave title to the property in this action to Nemfodog, Incorporated, and that he paid the mortgage with his personal funds. Plaintiff has further alleged that he retains an interest in the subject premises, and seeks to determine the parties’ interests in the subject premises, seeks an order compelling the sale of the property, cancelling and voiding any and all claims that moving defendants or defendants John/Jane Does may have. Moving defendants have moved for an order pursuant to CPLR §3211(a)(1) and (7), dismissing the complaint in its entirety. CPLR §3211(a)(1) provides that “[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that…a defense is founded upon documentary evidence…” “To successfully move to dismiss a complaint pursuant to CPLR 3211(a)(1), the movant must present documentary evidence that ‘resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim’” (AGCS Mar. Ins. Co. v. Scottsdale Ins. Co., 102 AD3d 899, 900 [2d Dept 2013], quoting Nevin v. Laclede Professional Prods., 273 AD2d 453 [2d Dept 2000]; see Leon v. Martinez, 84 NY2d 83, 88 [1994]; Bonavita v. Govt. Employees Ins. Co., 185 AD3d 892, 893 [2d Dept 2020]; Lakhi Gen. Contractor, Inc. v. N.Y. City Sch. Const. Auth., 147 AD3d 917 [2d Dept 2017]). CPLR §3211(a)(7) provides that a party may move to dismiss an action the ground that “the pleading fails to state a cause of action.” “On a motion to dismiss pursuant to CPLR §3211, the complaint is to be afforded a liberal construction” (Benitez v. Bolla Operating LI Corp., 189 AD3d 970 [2d Dept 2020]; CPLR §3026; see Gorbatov v. Tsirelman, 155 AD3d 836 [2d Dept 2017]; Feldman v. Finkelstein & Partners, LLP, 76 AD3d 703, 704 [2d Dept 2010]). “‘In reviewing a motion pursuant to CPLR §3211(a)(7) to dismiss the complaint for failure to state a cause of action, the facts as alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory’” (Benitez v. Bolla Operating LI Corp., 189 AD3d at 970, quoting Mendelovitz v. Cohen, 37 AD3d 670, 671 [2d Dept 2007]; see Bianco v. Law Offices of Yuri Prakhin, 189 AD3d 1326 [2d Dept 2020]; Gorbatov v. Tsirelman, 155 AD3d at 836; Feldman v. Finkelstein & Partners, LLP, 76 AD3d at 704). On a motion such as the instant one, “[t]he court is limited to ‘an examination of the pleadings to determine whether they state a cause of action”‘ (Dolphin Holdings, Ltd. v. Gander & White Shipping, Inc., 122 AD3d 901, 902 [2d Dept 2014], quoting Miglino v. Bally Total Fitness of Greater N.Y., Inc., 20 NY3d 342, 351 [2013]), and “[w]hether the plaintiff can ultimately establish the allegations ‘is not part of the calculus’” at this juncture (Etzion v. Etzion, 62 AD3d 646, 651 [2d Dept 2009]; see Aberbach v. Biomedical Tissue Servs., Ltd., 48 AD3d 716, 717-718 [2d Dept 2008]). The limited record before the court on the instant motion contains, among other things, copies of the pleadings and a copy of a deed for the subject premises dated April 2, 1987. In support of this branch of their motion, moving defendants have argued, among other things, that plaintiff lacks the requisite standing to assert any claims relating to the subject premises, owned by Nemfodog, Incorporated. However, contrary to moving defendants’ contentions, a careful review of the allegations contained in the complaint have demonstrated that plaintiff has sought relief with regard to his own, individual allegations and alleged damages, not on behalf of Nemfodog, Incorporated, the record owner of the subject premises (CPLR §3211[a][1], [7]). In the complaint, plaintiff has alleged, as a first cause of action, the following: “An action in recoupment pursuant to CPLR 203(d), asserting several claims of artifice, breach of implied covenant of good faith, fair dealing and unjust enrichment with unlawful dissolution of property interests to third parties without mutual consent) and pursuant to Article 15 of New York. State Real Property (RPAPL), compelling the determination of ownership claims/interests upon the property in this action, located at 114-60 MERRICK BLVD, QUEENS, NY l l434, for the ascertainment and redemption of current value of his original personal funds used as down payment to purchase the property in this action, and other subsequent monetary contributions.” Moving defendants have argued that the doctrine of equitable recoupment is inapplicable in this matter. CPLR §203, entitled “Method of computing periods of limitation generally,” provides the following at subsection (d): “Defense or counterclaim. A defense or counterclaim is interposed when a pleading containing it is served. A defense or counterclaim is not barred if it was not barred at the time the claims asserted in the complaint were interposed, except that if the defense or counterclaim arose from the transactions, occurrences, or series of transactions or occurrences, upon which a claim asserted in the complaint depends, it is not barred to the extent of the demand in the complaint notwithstanding that it was barred at the time the claims asserted in the complaint were interposed.” After a thorough examination of the allegations contained in the complaint, affording those allegations a liberal construction, accepting the facts alleged therein to be true, and granting plaintiff the benefit of every possible favorable inference, the court has determined that plaintiff is not in the position of a defendant who is asserting an affirmative defense or counterclaim in response to a complaint. Plaintiff’s commencement of the instant action to assert affirmative causes of action against moving defendants precludes the applicability of CPLR §203(d). Therefore, any cause of plaintiff’s cause of action sounding in, and alleging “recoupment,” pursuant to CPLR §203(d), is, hereby, dismissed (CPLR §3211[a][7]). Next, moving defendants have argued that the claim of “artifice” is not a legally cognizable cause of action. Based upon a thorough reading of the allegations contained in plaintiff’s complaint, affording them a liberal construction, accepting the facts alleged therein to be true, and granting plaintiff the benefit of every possible favorable inference, inasmuch as no legally cognizable cause of action exists, as it has been pled, for “artifice” in New York, plaintiff’s cause of action alleging same is, hereby, dismissed (id.). Moving defendants have argued that the complaint fails to state a claim for breach of the covenant of good faith and fair dealing. “Implicit in every contract is a covenant of good faith and fair dealing, which encompasses any promise that a reasonable promisee would understand to be included” (Michaan v. Gazebo Hort., Inc., 117 AD3d 692, 693 [2d Dept 2014]; see Aventine Inv. Mgt., Inc. v. Can. Imperial Bank of Commerce, 265 AD2d 513, 513-14 [2d Dept 1999]; Rayham v. Multiplan, Inc., 153 AD3d 865, 868 [2d Dept 2017]). In order “[f]or a complaint to state a cause of action alleging breach of an implied covenant of good faith and fair dealing, the plaintiff must allege facts which tend to show that the defendant sought to prevent performance of the contract or to withhold its benefits from the plaintiff” (Aventine Inv. Mgt., Inc. v. Can. Imperial Bank of Commerce, 265 AD2d at 514; see Singh v. City of New York, 189 AD3d 1697, 1700 [2d Dept 2020]; Twinkle Play Corp. v. Alimar Properties, Ltd., 186 AD3d 1447, 1448 [2d Dept 2020]). Based upon a thorough reading of the allegations contained in the complaint, affording those allegations a liberal construction, accepting the facts alleged therein to be true, and granting plaintiff the benefit of every possible favorable inference, the court has concluded that the complaint has failed to sufficiently allege the elements of a cause of action for breach of the covenant of good faith and fair dealing (see Aventine Inv. Mgt., Inc. v. Can. Imperial Bank of Commerce, 265 AD2d at 514). Therefore, moving defendants are entitled to the dismissal of this cause of action (CPLR §3211[a][7]). Moving defendants have argued that the complaint fails to state a cause of action for unjust enrichment. “The elements of a cause of action to recover for unjust enrichment are ‘(1) the defendant was enriched, (2) at the plaintiff’s expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered’” (GFRE, Inc. v. US. Bank, NA., 130 AD3d 569, 570 [2d Dept 2015], quoting Mobarak v. Mowad, 117 AD3d 998, 1001 [2d Dept 2014]). After a thorough review of plaintiff’s allegations set forth in the complaint, affording those allegations a liberal construction, accepting the facts alleged therein to be true, and granting plaintiff the benefit of every possible favorable inference, the court has concluded that the complaint has failed to sufficiently allege the elements of a cause of action for unjust enrichment (CPLR §3211[a][7]). Therefore, this cause of action is, hereby, dismissed. Given the court’s above determinations, and taking into account that no party has opposed the instant motion, the complaint in this matter is, hereby, dismissed in its entirety. Next, moving defendants have also moved pursuant to CPLR §6514 (a), to cancel and vacate the Notice of Pendency attached to the complaint. CPLR §6514, entitled “Motion for cancellation of notice of pendency,” provides the following at subsection (a): “Mandatory cancellation. The court, upon motion of any person aggrieved and upon such notice as it may require, shall direct any county clerk to cancel a notice of pendency, if service of a summons has not been completed within the time limited by section 6512; or if the action has been settled, discontinued or abated; or if the time to appeal from a final judgment against the plaintiff has expired; or if enforcement of a final judgment against the plaintiff has not been stayed pursuant to section 5519.” Inasmuch as the court’s above determinations have resulted in the dismissal of plaintiff’s complaint, moving defendants are entitled to have the notice of pendency, annexed to said complaint, dismissed and cancelled pursuant to CPLR §6514(a). Lastly, moving defendants have moved pursuant to CPLR §6514(c), and 22 NYCRR §130- 1.1, for sanctions against plaintiff in the form of the recovery of their attorneys’ fees, costs, and disbursements in making this motion. CPLR §6514, provides the following at subsection (c): “Costs and expenses. The court, in an order cancelling a notice of pendency under this section, may direct the plaintiff to pay any costs and expenses occasioned by the filing and cancellation, in addition to any costs of the action.” Sanctions are permitted pursuant to the Rules of the Chief Administrator of the Courts (22 NYCRR) §130-1.1(a), which provides that “[t]he court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees, resulting from frivolous conduct as defined in this Part.” Pursuant to the Rules of the Chief Administrator of the Courts (22 NYCRR) §130-1.1(c), conduct is frivolous if: “(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false. Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.” Upon a thorough review of the evidence in the record and after careful consideration, the court finds that moving defendants have failed to satisfy their burden (Rules of the Chief Administrator of the Courts [22 NYCRR] §130-1.1[a], [c]). As such, and inasmuch as it is within the discretion of this court, moving defendants are not entitled to the relief sought on this branch of their motion. The remaining contentions have been considered and found to be unavailing. Accordingly, the motion is granted only to the extent that the complaint is dismissed and the Notice of Pendency is cancelled. The motion is denied in all other respects. The County Clerk of Queens County is directed, upon payment of the proper fee, if any, to cancel and discharge a certain Notice of Pendency filed in this action on December 27, 2021, against the property known as Block 12334, Lot 325, also known as 114-60 Merrick Blvd., Queens, NY, 11434, and said Clerk is, hereby, directed to enter upon the margin of the record of same a Notice of Cancellation referring to this Order. This is the decision and order of the Court. Dated: November 28, 2022
