The following e-filed documents, listed by NYSCEF document number (Motion 003) 69, 70, 74, 75, 76 were read on this motion to DISMISS. DECISION + ORDER ON MOTION Defendants Newstone AECC US, Inc.’s (“Newstone Inc.”), Hillel Lichtenstein’s (“Lichtenstein”) and Hilly Services Inc.’s (“Hilly” and with Newstone Inc. and Lichtenstein “Defendants”) partial motion to dismiss Plaintiffs Newstone AECC, LLC’s (“Newstone LLC”) and Yaakov Newhouse’s (“Newhouse” and together “Plaintiffs”) Verified Complaint (“Complaint” [NYSCEF 2]) pursuant to CPLR 3211(a)(7) is denied. A. Background This is a dispute between former partners, and now competitors, in the 3-D laser scanning business. The Complaint asserts fourteen causes of action based on allegations that Defendants stole Newstone LLC’s business by creating the similarly named Newstone, Inc. and representing (inaccurately) to third parties that it was a successor entity. Defendants move to dismiss Plaintiffs’ replevin, unjust enrichment, breach of fiduciary duty and fraud claims on the grounds that they are either duplicative or not sufficiently pled. Plaintiffs oppose and argue that they may plead claims in the alternative and that their claims are sufficient to withstand a motion to dismiss for failure to state a claim. B. Discussion a. Legal Standard On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the Court must afford the complaint a liberal construction, accept all facts as alleged in the complaint to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Leon v. Martinez, 84 NY2d 83, 87-88 [1994]). Generally, questions of fact are not properly resolved on a motion to dismiss (Sand Canyon Corp. v. Homeward Residential, Inc., 105 AD3d 587, 587 [1st Dept 2013] [citations omitted]). b. The Complaint Adequately Alleges Causes of Action for Replevin The Complaint’s Third, Fourth, Fifth and Sixth Causes of Action are for conversion of various physical, financial, and electronic assets of Newstone LLC. The Complaint’s Seventh and Eighth Causes of Action seek replevin of the same assets. Defendants argue that Plaintiffs’ replevin claims should be dismissed as duplicative of the conversion claims. “Two key elements of conversion are (1) plaintiffs possessory right or interest in the property and (2) defendant’s dominion over the property or interference with it, in derogation of plaintiffs rights” (Pappas v. Tzolis, 20 NY3d 228, 234 [2012] quoting Colavito v. New York Organ Donor Network, Inc., 8 N.Y.3d 43, 50 [2006]). “To state a cause of action for replevin, a plaintiff must establish a superior possessory right to property in a defendant’s possession” (Reif v. Nagy, 175 AD3d 107, 120 [1st Dept 2019], lv dismissed 35 NY3d 986 [2020] [awarding both conversion and replevin]). CPLR 3014 provides, in relevant part, that “[c]auses of action or defenses may be stated alternatively or hypothetically.” Accordingly, “plaintiff may plead alternative, inconsistent theories” (Kerzhner v. G4S Govt. Sols., Inc., 138 AD3d 564, 565 [1st Dept 2016]). Plaintiffs’ replevin claims are adequately pled as alternatives and are not subject to dismissal as duplicative of their conversion claims (Man Advisors, Inc. v. Selkoe, 174 AD3d 435 [1st Dept 2019] [fraud and breach of contract actions could proceed where based on different allegations]). If appropriate, Defendants may reassert their arguments on summary judgment or at trial. c. Unjust Enrichment May be Pled in the Alternative To state a claim of unjust enrichment, Plaintiff must allege “that (1) the defendant was enriched, (2) at plaintiff’s expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered” (Georgia Malone & Co., Inc. v. Rieder, 19 N.Y.3d 511, 516, 950 N.Y.S.2d 333, 973 N.E.2d 743 [2012]). Plaintiffs allege each of the required elements (Cplt.
146-150). Defendants submit that Plaintiffs are asserting unjust enrichment as “an impermissible catchall” that duplicates their replevin, conversion, and fraud claims. The Court disagrees as unjust enrichment, an equitable cause of action, may be pled in the alternative to claims at law, including conversion (New York Eye and Ear Infirmary v. Bowne, 200 AD3d 467 [1st Dept 2021]). At this juncture, the Court “cannot determine whether or not plaintiffs have an adequate remedy at law” and the unjust enrichment claim may proceed (Rosenbach v. Diversified Group, Inc., 12 Misc 3d 1152(A) [Sup Ct New York County 2006]). d. The Complaint States a Cause of Action for Breach of Fiduciary Duty “To state a claim for breach of fiduciary duty, plaintiffs must allege that (1) defendant owed them a fiduciary duty, (2) defendant committed misconduct, and (3) they suffered damages caused by that misconduct” (Burry v. Madison Park Owner LLC, 84 AD3d 699, 699-700 [1st Dept 2011] [citations omitted]). Plaintiffs allege each of the required elements (Cplt.
