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Cipriani USA, Inc. v. Heaton
Cipriani USA, Inc. v Heaton 2025 NY Slip Op 31582(U) May 2, 2025 Supreme Court, New York County Docket Number: Index No. 153894/2024 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
INDEX NO. 153894/2024 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 05/02/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT: HON. MARY V. ROSADO PART 33M Justice ·-------------------X INDEX NO. 153894/2024 CIPRIANI USA, INC., MOTION DA TE 12/06/2024 Plaintiff, MOTION SEQ. NO. 004 - V -
ANDREW HEATON, AAA FULTON SUPPLY INC.,TEK MEK INC.,YEVGENIY PORTNOY, PHILIP CORHAN, DECISION + ORDER ON ALEKSANDR PORTNOY, FRANKLIN PALAQUIBAY MOTION
Defendant. ------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 004) 66, 67, 68, 69, 70, 71 were read on th is motion to/for DISMISS
Upon the foregoing documents, and after a final submission date of February 25, 2025,
Plaintiff Cipriani USA, Inc.' s ("Plaintiff') motion to dismiss Defendants AAA Fulton Supply Inc.
("AAA Fulton") and Tek Mek Inc.'s ("Tek Mek") (collectively "Counterclaim Defendants")
counterclaims pursuant to CPLR 321 l(a)(5) and (a)(7) is granted in part and denied in part.
L Background
Plaintiff Cipriani USA, Inc. ("Plaintiff') alleges the Counterclaim Defendants, who served
as vendors for Plaintiff, committed fraud by submitting false, inflated, and duplicate invoices
(NYSCEF Doc. 1). In motion sequence 002, this Court granted the Counterclaim Defendants leave
to amend their Answer in part, but denied leave as to any counterclaim for unpaid invoices dated
prior to May 31, 2018 as those claims were time barred (see NYSCEF Doc. 54 ). Nonetheless, in
their Amended Answer, the Counterclaim Defendants assert claims premised on a vague allegation
that the Counterclaim Defendants were not paid for services provided "between 2018 and July
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INDEX NO. 153894/2024 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 05/02/2025
2023." They also assert a variety of quasi-contract claims. Plaintiff seeks dismissal of the
counterclaims pursuant to CPLR 321 l(a)(5) and (a)(7), and the Counterclaim Defendants oppose.
II. Discussion
A. Statute of Limitations
As this Court previously held, counterclaims for breach of contract, unjust enrichment, and
promissory estoppel premised on any invoices which pre-date May 31, 2018, are time barred
(NYSCEF Doc. 54). To the extent the Counterclaim Defendants allege breach of contract, unjust
enrichment, and promissory estoppel premised on any invoices which pre-date May 31, 2018,
those claims are dismissed.
B. Failure to State a Claim
i. Standard
When reviewing a pre-answer motion to dismiss for failure to state a claim, the Court must
give Plaintiff the benefit of all favorable inferences which may be drawn from the pleadings and
determine only whether the alleged facts fit within any cognizable legal theory (Sassi v Mobile
Life Support Services, Inc., 37 NY3d 236,239 [2021]. However, conclusory allegations or claims
consisting of bare legal conclusions with no factual specificity are insufficient to survive a motion
to dismiss (Godfrey v Spano, 13 NY3d 358,373 [2009] Barnes v Hodge, 118 AD3d 633, 633-634
[1st Dept 2014]). A motion to dismiss for failure to state a claim will be granted if the factual
allegations do not allow for an enforceable right of recovery (Connaughton v Chipotle Mexican
Grill, Inc., 29 NY3d 137, 142 [2017]).
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INDEX NO. 153894/2024 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 05/02/2025
ii. Breach of Contract
Plaintiffs motion to dismiss the breach of contract counterclaim is denied. Although
Plaintiff argues that the existence of a contract is not adequately alleged, Plaintiff fails to consider
its own allegations upon which the counterclaims are premised. Plaintiff alleges breach of the
covenant of good faith against the Counterclaim Defendants and specifically alleges a business
contract existed between it and the Counterclaim Defendants (NYSCEF Doc. 1 at ,r 199). Plaintiff
is estopped from alleging in its complaint that a contract exists between it and the Counterclaim
Defendants and asserting a cause of action based on the alleged contract, and then seeking
dismissal of the Counterclaim Defendants breach of contract claim by arguing that no contract
exists. Thus, this portion of the motion to dismiss is denied.
iii. Quasicontractual counterclaims
Plaintiffs motion to dismiss the Counterclaim Defendants quasi contractual counterclaims
is denied. At the pleading stage and given the fact that no party has produced a written contract,
the Counterclaim Defendants are entitled to plead inconsistent causes of action in the alternative
(see Silver v Baker Botts L.L.P., 235 AD3d 437,438 [1st Dept 2025]; Winick Realty Group LLC v
Austin & Associates, 51 AD3d 408 [1st Dept 2008]). Indeed, as Plaintiff appears to be disputing
the existence of a contract through this instant motion to dismiss, the alternatively pied
quasicontractual claims are proper at this juncture. Of course, should discovery yield the existence
of a valid written contract, the quasicontractual claims may be dismissed via dispositive motion
practice.
Accordingly, it is hereby,
ORDERED that Plaintiffs motion to dismiss the Counterclaim Defendants' counterclaims
is granted in part and denied in part; and it is further
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INDEX NO. 153894/2024 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 05/02/2025
ORDERED that the motion is granted solely to the extent that counterclaims for breach of
contract, unjust enrichment, and promissory estoppel premised on any invoices which pre-date
May 31, 2018, are dismissed as time barred; and it is further
ORDERED that the remainder of the motion which seeks dismissal of the timely
counterclaims alleging breach of contract and quasicontractual claims is denied; and it is further
ORDERED that within twenty days of entry of this Decision and Order, Plaintiff shall
serve a response to the Counterclaim Defendants' remaining counterclaims; and it is further
ORDERED that within ten days of entry, counsel for the Counterclaim Defendants shall
serve a copy of this Decision and Order, with notice of entry, on all parties via NYSCEF.
This constitutes the Decision and Order of the Court.
5/2/2025 DATE
CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION
GRANTED □ DENIED x GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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Footnotes
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