Pattison College v New York Inst. of Tech.

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Pattison College v New York Inst. of Tech. 2012 NY Slip Op 30332(U) February 6, 2012 Supreme Court, Nassau County Docket Number: 600941/11 Judge: Stephen A. Bucaria Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] oRIGINAL SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. STEPHEN A. BUCARIA Justice TRIAL/lAS , PART NASSAU COUNTY PATTISON COLLEGE, INEX No. Plaintiff 600941/11 MOTION DATE: Dec. 9 , 2011 Motion Sequence # 001 -against- NEW YORK INSTITUTE OF TECHNOLOGY Defendant. The following papers read on this motion: Notice of Motion....................................... X Memorandum of Law................................ XX Reply Memorandum of Law...................... X Motion by the attorneys for the defendant New York Institute of Technology (NYIT) for an order pursuant to CPLR 32121(a)(1) and (7) dismissing the complaint by the plaintiff denied in part. Pattison College (P. I:ranted ) Is in part and The following allegations are set forth in the complaint: PlaintiffP. C. is a for-profit organization which operates and manages professional and cooperative educational programs in Vancouver , Canada. ( 1). The defendant NYIT operates professional and education programs and is located in Old Westbury, New York. The plaintiff and defendant arranged for a program by which students could attend both schools. Specifically, primarily foreign students could attend Pattison College along with programs at NYIT and ultimately receive a degree from NYIT. 3). Plaintiff and defendant executed a contract on or about September 1 2005. The contract provided for a cooperative endeavor between the parties [* 2] PATTISON COLLEGE Index no. 600941/11 whereby students could attend programs mutually arranged by both plaintiff and defendant. (~5). The contract provided for defendant to make certain payments and distributions , part of which was to distribute monies received from students. Defendant has failed to provide accountings , statements and other information by which the defendant' s obligation could be calculated (~ 8). Defendant executed a supplement statement of terms , amendment modification , or addendum to the original agreement in or about June , 2007. (~9). On about Februar 18 2008 , defendant provided a letter purporting to terminate the agreement and the parties relationship. (~ 10). Although the defendant purported to terminate the parties relationship and any agreements , in practice , it continued the existing programs. (~ 13). During the following years , and from 2007 to 2011 , defendant obtained monies from new and existing students for programs in Vancouver, Canada where plaintiff was located. (~14). To the extent it believed there were some legitimate concerns about plaintiffs work and performance, it would not have utilized the same persons , facilties , employees , and other things plaintiff provided. Instead , it would have created a new program using its own personnel , propert, employees , and other things. Its purorted termination was a device to utilze plaintiffs propert without continuing to pay for it. (~15). Defendant has failed to make required distributions under the original agreement and amendment , and to provide accurate information and accountings. (~ 17). Plaintiffhas made due demand both orally and in writing for distribution of the monies due it and appropriate accounting. (~ 18). The First and Second Causes of Action alleges breach of contract. The Third Cause of Action seeks an accounting and a constructive trust. The Fourth Cause of Action although styled "Deception " seeks " complete and correct information along with appropriate distributions. " The Fifth Cause of Action , although styled "breach of good faith and fair dealing, " also seeks " complete and correct information along with appropriate distributions. The Sixth Cause of Action sounds in quantum meruit. On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must accept as true the facts " alleged in the complaint and submissions in opposition to the motion , and accord plaintiffs the benefit of every possible favorable inference " determining only "whether the facts as alleged fit within any cognizable legal theory Sokoloff v Harriman Estates Development Corp. 96 NY2d 409 , 414; see People ex rel. Cuomo v Conventry First LLC Polonetsky v Better Homes Depot 97 NY2d 46 , 54; Leon v Martinez , 84 13 NY3d 108; Partners. LLP 76 AD3d 703). Notably, on a NY2d 83 motion to dismiss , the plaintiff is not obligated to demonstrate evidentiary facts to support Stuart Realty Co. v Rve Country Store. Inc. Paulsen v Paulsen 148 AD2d 685 Palmisano v Modernismo Pub. , 88; Feldman v Finkelstein the allegations contained in the complaint 296 AD2d 455; (see, , 686; [* 3] PATTISON COLLEGE Index no. 600941/11 98 AD2d 953 954 , and " (w)hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss (EBC I. Inc. v Goldman Sachs & International Oil FieldSupplvServices Corp. v Fadevi 35 AD3d 372. Co. 5 NY3d 11 In assessing a motion under CPLR 3211(a)(7), a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint " and if the court does so, the criterion is whether the proponent ofthe pleading has a cause of action, not whether he Uzzle v Nunzie Court Homeowners Ass ' has stated one (Leon v Martinez supra Inc. 55 AD3d 723). , 19; ; see also (t)o succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all Moreover factual issues as a matter oflaw, and conclusively disposes of the plaintiffs claim yanfro Co. of N. Y. 98 NY2d 314 , 326; Goshen v v McGivnev 11 AD3d 662; Mutual.ns. Arnav Industries. Inc. Joriill Holding Ltd. v Greico Associates. Inc. Retirement Trust v Brown. Ravsman. Milstein. Felter and Steiner. L. L.P. 96 NY2d 300 6 AD3d 500; see, 303. The complaint adequately alleges claims for breach of contract of the original September 1 2005 Agreement and the Supplemental Term Sheet that refers to the September , 2005 Agreement. These documents do not establish conclusively a defense to the complaint as a matter of law. The application to dismiss the First and Second Causes of Action is denied. In the Third Cause of Action the plaintiff seeks a constructive trust. A constructive trst requires (1) a confidential or fiduciary relationship; (2) a promise express or implied; Sharp v Kosmalski 40 NY2d (3) a transfer in reliance thereon; and (4) unjust enrichment 119). CPLR 3016(b) requires, when pleading a cause of action for breach of fiduciary duty or trust , that the " circumstances constituting the wrong shall be stated in detail." A pleading asserting a breach of fiduciary duty wil be dismissed unless it contains a detailed and Precision particularized factual basis supporting each essential element of the Concepts. Inc. v Bonsanti 172 NY2d 737, 737- 38 (dismissing plaintiffs claims for breach of fiduciary duty due to " allegations (that) are , for the most part , conclusory in nature. ) The particularity requirements of " CPLR 3016(subd. (b)) impose a more stringent standard of pleading than the generally applicable ' notice of transaction ' rule CPLR 3013 , and complaints based on . . . breach of trust which fail in whole or in part to meet this special test claim. Williams v Upjohn Health Care Servs.. Inc. 119 AD2d 817 , 819 (citations omitted)). The complaint alleges the defendant of factual pleading have consistently been dismissed" [* 4] Index no. 600941/11 PATTISON COLLEGE utilzed the lease , premises, personnel , services and other aspects or the programs plaintiff provided to obtain monies from new and serve existing students. (~ 11). Information about these things and the items themselves were confidential and proprietary and represented its information about them through plaintiff s intellectual propert. Defendant had acquired existence of a confidential the parties relationship. (~ 12). The plaintiffs allegations of the or fiduciary relationship between the parties is pled with sufficient specificity to satisfy the requirements ofCPLR 3016. The motion to dismiss the Third Cause of Action seeking a constructive trust is denied. The Fourth Cause of Action is for "Deception. " There is no such cause of action in New York for Deception. To the extent plaintiff means " fraud, " the complaint fails to allege 16(b). Moreover , the any ofthe elements of fraud with particularity as required by CPLR 30 Deception" claim is the same as the breach of contract claims. The Fourth Cause of Action dismissed without prejudice. is In the Fift Cause of Action, the plaintiff alleges a breach of good faith and fair dealing with regard to the contract in that defendant secured the benefits of the contract; obtaining goods and services provided by the plaintiff under the agreement, while providing incomplete , misleading and incorrect accounting, distribution statements and other data. This covenant of good faith and fair dealing is is redundant since a breach of an implied Canstar v J.A. intrinsically tied to the damages allegedly resulting from breach of contract. Jones Const. Co. dismissed 212 AD3d 452. The Fifth Cause of Action is Parties are permitted under New York law to plead causes of action in the alternative Cohn v Lionel and even to plead causes of action that conflict with one another. CPLR 30 Corp. 21 NY2d 559. A part may proceed on both a breach of contract and quasi-contract dispute as to the existence of a contract. In the within action there is a shar dispute as to the existence of a valid contract in the first instance, and 14; theories where there is a bona fide whether there was a breach of a contract , if one is found to have been controllng. The quantum meruit is denied motion to dismiss the Sixth Cause of Action sounding in The Four and Fifth Causes of Action are dismissed. Defendant shall submit an answer within 30 days ofthe date of this order. A Preliminar Conference has been scheduled for April 2 , 2012 at 9:30 a. m. in [* 5] .. PATTISON COLLEGE Index no. 600941/11 Chambers of the undersigned. Please be advised that counsel appearing for the Preliminary shall be fully versed in the factual background and their client's schedule for the firm deposition dates. Conference purpose of setting This decision is the order of the Court. Dated FEB 0 6 2012 ENTERED FEB 08 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE

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