DECISION & ORDER Upon the papers filed in support of the application and the papers filed in opposition thereto, and after hearing oral arguments it is hereby: ORDERED that Moving Defendant Surangani Gunaratne, personally and as administrator of the Estate of Ajantha Gunaratne’s motion to dismiss Paragraph 52 of Plaintiff’s First Amended Verified Complaint pursuant to CPLR §3211(a)(7) is hereby granted. BACKGROUND AND PROCEDURAL HISTORY This incident arises out of an alleged slip and fall on ice suffered by the Plaintiff on February 21, 2021, at 33 Elizabeth Avenue in Staten Island (hereinafter “the Premises”). At the time of the incident, the Premises was owned by Surangani and Ajantha Gunaratne, and leased to the Plaintiff. Plaintiff filed her original Summons and Complaint on February 16, 2024, and filed the First Amended Verified Complaint (“FAVC”) on April 22, 2024, with service accepted by the Defendants on June 3, 2024. Paragraph 52 of the FAVC, the subject of the Moving Defendants’ motion, reads “[a]fter the injuries of plaintiff, Sylvia Rivera, the defendants Surangani promised to pay the medical bills of plaintiff, Sylvia Rivera, but have since breached that agreement to pay plaintiff’s [medical] bills.” After the incident, Mrs. Gunaratne sent a text message to Plaintiff in which she allegedly promised to pay for Plaintiff’s medical bills. Mrs. Gunaratne explained that there was no insurance coverage on the property at the time of the incident, and therefore the moving Defendants would cover the medical expenses personally. In a March 27, 2021, text message, shortly after the incident, the Plaintiff stated: Good evening, Ajanta [Gunaratne] & Sue [Gunaratne] Due to my injury, I am accruing bills that are not covered by my insurance. Would you please give me your insurer’s name so that I can get some of these bills paid? I would appreciate your help. Thank you. Sylvia.1 In response, Mrs. Gunaratne texted the Plaintiff on March 27, 2021: Ajanta [Gunaratne] is severely depressed. Please don’t call him and leave him messages. He is unable to function at this point. You could give us the bills and we will pay them. It is unfortunate. Your insurance carrier is not covering them. We will somehow try to help you. If you make copies, Sandy will pick them up. The Plaintiff then responded “I do not want you to have to pay for my bills. That is the entire purpose of homeowners insurance. Just give me their name, please. Thank you” to which Mrs. Gunaratne replied “[w]e have to pay because there has been a lapse of coverage that Ajanta was not aware of, and I reinstated it. So, unfortunately, we have to pay for them.” The Moving Defendants filed the instant Motion to Dismiss in lieu of an Answer on June 24, 2024. Plaintiff filed opposition on July 5, 2024, and the Moving Defendants filed their Reply on July 8, 2024. The Court heard oral arguments on July 18, 2024, and reserved decision. ARGUMENTS The Moving Defendants argue that the FAVC does not allege the requisite mutual assent nor mutual consideration to support a breach of contract claim. Further, they argue that the FAVC does not allege that performance by Mrs. Gunaratne was possible, nor does it allege the existence of a written agreement as required by the statute of frauds under New York’s General Obligations Law §5-701(a)(2). In opposition, the Plaintiff argues that the text messages exchanged between the Plaintiff and the Moving Defendants present triable issues of fact for a jury to decide. The Plaintiff argues that Mrs. Gunaratne texted the Plaintiff promising to pay her medical bills. The Plaintiff further alleges that the text messages demonstrate that the Moving Defendants explained they did not have insurance coverage and would cover the Plaintiff’s medical bills personally, and that the Plaintiff relied upon that promise. The Plaintiff argues that in reliance on the Moving Defendants’ promise, she submitted her medical bills to her insurance company, who indicated that the Plaintiff would be responsible for paying back a medical lien from any settlement or jury verdict. Plaintiff further argues that Paragraph 52 of the FAVC does not necessarily allege a breach of contract claim, but a claim of promissory estoppel, and that further discovery will demonstrate the necessary elements of said claim. In reply, the Moving Defendants argue that the Plaintiff has essentially admitted that any breach of contract claim asserted in Paragraph 52 of the FAVC must be dismissed. Instead, the Moving Defendants argue, the Plaintiff has “shifted gears” in alleging that the text messages between Plaintiff and Moving Defendants demonstrate a claim of a promissory estoppel. In response to that argument, the Moving Defendants argue that a claim of promissory estoppel must still be dismissed because the FAVC does not sufficiently allege reasonable reliance on a purported promise by the Plaintiff nor unconscionable injury suffered by the Plaintiff. LEGAL STANDARD On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), a court must “accept the facts as alleged in the complaint as true, accord plaintiffs 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 N.Y.2d 83, 87-88 [1994]). The essential elements of a breach of contract claim are the formation of a contract between parties, performance by one party, the other party’s failure to perform, and resulting damage (see El-Nahal v. FA Management, Inc., 126 A.D.3d 667 [2015]; Furia v. Furia, 116 A.D.2d 694, 695 [2nd Dept 1986]). “Generally, courts look to the basic elements of the offer and the acceptance to determine whether there is an objective meeting of the minds sufficient to give rise to a binding and enforceable contract” (Matter of Express Indus. and Term. Corp. v. New York State Dept. of Transp., 93 N.Y.2d 584, 589 [1999]). An agreement to answer the debt of another is required to be made in writing pursuant to the statute of frauds under New York’s General Obligations Law §5-701(a)(2) (see Carducci v. Bensimon, 115 A.D.3d 694, 695 [2nd Dept 2014]). The elements of a claim for promissory estoppel are a clear and unambiguous promise, reasonable and foreseeable reliance by the party to whom the promise is made, and an injury sustained in reliance on that promise (see Braddock v. Braddock, 60 A.D.3d 84, 95 [1st Dept 2009]; Williams v. Eason, 49 A.D.3d 866, 868 [2008]). This doctrine may be invoked only where the aggrieved party can demonstrate the existence of a clear and unambiguous promise upon which he or she reasonably relied, thereby sustaining injury (see Ginsberg v. Fairfield-Noble Corp., 81 A.D.2d 318, 320-321 [1st Dept 1981]). As a general matter, an oral promise will not be enforced on this ground unless it would be unconscionable to deny it. “An ‘unconscionable injury’ is ‘injury beyond that which flows naturally…from the non-performance of the unenforceable agreement’” (Bent v. St. John’s Univ. New York, 189 A.D.3d 973, [2nd Dept 2020], quoting Merex A.G. v. Fairchild Weston Sys., Inc., 29 F.3d 821, 826 [2d Cir 1994]). DISCUSSION This Court finds that Paragraph 52 of the FAVC does not sufficiently plead a cause of action for breach of contract, and therefore to the extent that Plaintiff does assert a breach of contract claim under that paragraph, that claim is dismissed. The FAVC, nor the text messages submitted by the Plaintiff in her opposition papers do not sufficiently allege that there was the requisite mutual assent to give rise to an enforceable contract. Instead, the text messages show that Plaintiff at the very least attempted to rebuff the Moving Defendant’s promise to pay her uncovered medical bills (see 26th St. Partners, LLC v. Fed’n of Orgs. for New York State Mentally Disabled, Inc., 182 A.D.3d 543, 543-544 [2nd Dept 2020])). Furthermore, it is clear that the text message exchange by the Parties does not constitute a proper written agreement under New York’s General Obligations Law, and therefore Plaintiff cannot assert a breach of contract claim for the Moving Defendants’ promise to cover Plaintiff’s medical debts (see Preston v. Nichols, 216 A.D.3d 1389 [4th Dept 2023], quoting Leist v. Tugendhaft, 64 A.D.3d 687, 688, [2nd Dept 2009]). Furthermore, Plaintiff’s own opposition papers do not argue that there is a sufficiently pled breach of contract claim contained within Paragraph 52. For these reasons, the Court is granting the Moving Defendants’ motion to dismiss Paragraph 52 of the FAVC to the extent that it asserts a cause of action for breach of contract. The Court further finds that Paragraph 52 of the FAVC does not sufficiently plead a cause of action for promissory estoppel. As stated above, the text messages show that the Plaintiff rebuffed the Moving Defendants offer to pay her medical bills. Furthermore, neither the text messages submitted nor the FAVC demonstrate that the Plaintiff submitted any of her unpaid bills to the Moving Defendants, nor that she at any time demanded payment from the Moving Defendants (see Bent v. St. John’s Univ. New York, 189 A.D.3d at 973). Finally, the injuries alleged by the Plaintiff as having resulted from her purported reliance on this alleged agreement do not constitute “unconscionable injury” sufficient to circumvent the Statute of Frauds. The Plaintiff’s responsibility to pay her medical bills and any liens from Medicare from a settlement or jury verdict are all injuries that would flow naturally from the Moving Defendants alleged non-performance (see id.). For these reasons, the Court is granting Moving Defendants’ motion to dismiss Paragraph 52 of the FAVC to the extent that it asserts a cause of action for promissory estoppel. Therefore, it is hereby ordered that Paragraph 52 of the First Amended Verified Complaint is dismissed to the extent that it asserts a cause of action for Breach of Contract or Promissory Estoppel. This constitutes the Decision and Order of the Court. Dated: August 7, 2024
