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Aptos, LLC v. Forman Mills Inc.

Motion to Dismiss Denied and Granted in Part in Collections Action

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The following e-filed documents, listed by NYSCEF document number (MS001) 8, 9, 10, 11, 12, 13 were read on this motion to/for DISMISS. DECISION + ORDER ON MOTION Plaintiff Aptos, LLC (Aptos) brings this collection action against defendant Forman Mills Inc. (Forman Mills), asserting claims for breach of contract, account stated, promissory estoppel, and unjust enrichment in connection with its effort to recover more than $3 million that Forman Mills purportedly agreed to pay for software services pursuant to a long term services contract (see NYSCEF # 2 — Complaint or compl). Forman Mills now moves to dismiss Counts I, III, and IV of the Complaint pursuant to CPLR 3211(a)(1) and (a)(7). For the following reasons, the motion is granted in part and denied in part. Background The parties’ dispute centers around a decades long contractual relationship pursuant to which Aptos provided payment processing equipment and software to Forman Mills for use in its discount retail stores (see compl

1, 4-5, 9). In furtherance of this relationship, on March 13, 2017, Aptos, Inc. (as predecessor to Aptos) and Forman Mills entered into a Master Subscription Services Agreement (MSA) (id. 10; NYSCEF # 3 — MSA §§2-4). The MSA included and incorporated by reference a Subscription Services Order Form (the Services Form), which identified specific services that Aptos would perform for Forman Mills and the pricing for those services (compl 10; MSA at Services Form

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