Talbi v Boulevard Taxi Leasing, Inc.
2012 NY Slip Op 30841(U)
April 3, 2012
Supreme Court, Queens County
Docket Number: 1577/11
Judge: Robert J. McDonald
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SHORT FORM ORDER
NEW YORK SUPREME COURT : QUEENS COUNTY
P R E S E N T : HON. ROBERT J. McDONALD
Justice
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SAMIR TALBI, individually and on
behalf of all others similarly
situated,
Plaintiff,
- against -
IAS PART 34
Index No.: 1577/11
Motion Date: 1/5/12
Motion No.: 30
Motion Seq.: 1
BOULEVARD TAXI LEASING, INC., MIKE
MELLIS BROKERAGE, INC., MICHAEL
MELLIS, STEVE GOUNARIS and JOHN DOES
#1-10,
Defendants.
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The following papers numbered 1 to 8
read on this motion by
defendants Boulevard Taxi Leasing Inc., Mike Mellis Brokerage,
Inc., Michael Mellis, and Steve Gounaris for an order
dismissing the complaint on the grounds of documentary evidence
and the failure to state a cause of action, pursuant to CPLR
3211(a)(1) and (7).
Papers
Numbered
Notice of Motion-Affidavit -Exhibits(A-D)
Opposing Declaration
Reply Affirmation
Memorandum of Law
Memorandum of Law
Upon the foregoing papers this
follows:
1-4
5-6
7-8
motion is determined as
Plaintiff Samir Talbi commenced this purported class action
for breach of contract, unjust enrichment and quantum meruit on
January 11, 2011. The courtâs records reveal that plaintiff
filed an amended complaint and a notice discontinuing the action
against Sotirakis Coritsides on February 10, 2011. Defendants
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filed an answer on April 11, 2011, and served their amended
answer on April 26, 2011. The amended answer, filed on April
28, 2011, interposed fifteen affirmative defenses and the first
nine affirmative defenses pertain to the purported class action.
On April 6, 2011, defendants served plaintiff with a first
notice for discovery and inspection. Plaintiff responded by
serving objections and responses dated September 9, 2011.
Plaintiffâs counsel states that on October 6, 2011 defendants
were served with plaintiffâs first discovery demands, including
interrogatories, a deposition notice, and document demand.
Copies of these discovery demands have not been submitted.
Defendants served the within motion on November 21, 2011.
Plaintiff Samir Talbiâs first cause of action for breach of
contract alleges that he entered into a âbinding executory [sic]
contractual agreementâ with defendants for each shift he worked
whereby he agreed to pay the lease fees in exchange for the use
of a licensed taxi cab during a specified period. Plaintiff
alleges that defendants breached the agreement by charging more
than the Taxi and Limousine Commission maximum lease cap,
charging for days on which drivers did not drive the taxi cab,
overcharging for hybrid vehicles, allowing dispatchers to demand
tips in order to obtain cabs, charging for damages and repair to
vehicles, failing to provide a signed lease agreement to the
drivers, and failing to provide a detailed receipt for the lease
of the taxi cabs. Plaintiff seeks recession of the alleged
unlawful portions of the executory agreement which was formed
each time he drove a taxicab owned or controlled by the
defendants, and seeks to recover the amounts retained in excess
of the maximum lease cap.
The second cause of action for unjust enrichment
incorporates the prior allegations and alleges defendants
charged lease rates in excess of the rates permitted by the Taxi
and Limousine Commissionâs Rules and Regulations, and seeks to
recover unpaid compensation, interest, costs and reasonable
attorneyâs fees.
The third cause of action for quantum meruit incorporates
the prior allegations and alleges that defendants have failed to
fully compensate the plaintiff for his labor, as he was
overcharged for the lease of the taxicab, and seeks to recover
unpaid compensation, interest, costs and reasonable attorneyâs
fees.
Plaintiff, in his prayer for relief , seeks certification of
the class; an award of monetary damages; interest; punitive
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damages; injunctive relief; and costs, expenses and reasonable
attorneyâs fees.
Defendants now seek an order dismissing the complaint. It
is well established that on a motion to dismiss pursuant to
CPLR 3211(a)(7), âthe court must afford the pleadings a liberal
construction, accept the allegations of the complaint as true and
provide plaintiff the benefit of every possible favorable
inferenceâ (AG Capital Funding Partners, L.P. v State St.
Bank & Trust Co., 5 NY3d 582, 591 [2005]; see Goshen v Mutual
Life Ins. Co. Of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez,
84 NY2d 83, 87-88 [1994]). The courtâs âsole criterion is whether
the pleading states a cause of action, and if from its
four corners factual allegations are discerned which taken
together manifest any cause of action cognizable at law, a motion
for dismissal will failâ (Polonetsky v Better Homes Depot, Inc.,
97 NY2d 46, 54 [2001], quoting Guggenheimer v Ginzburg,
43 NY2d 268, 275 [1977]; see also Sokoloff v Harriman Estates
Dev. Corp., 96 NY2d 409, 414 [2001]; Leon v Martinez, 84 NY2d at
87-88; High Tides, LLC v DeMichele, 88 AD3d 954 [2011]; Marist
Coll. v Chazen Envtl. Servs., Inc., 84 AD3d 1181[2011]; Sokol v
Leader, 74 AD3d 1180 [2010]; Reiver v Burkhardt, Wexler &
Hirschberg, LLP., 73 AD3d 1149 [2010]; Tom Winter Assoc., Inc. v
Sawyer, 72 AD3d 803 [2010]; Uzzle v Nunzie Court Homeowners Assn.
Inc. 70 AD3d 928 [2010]; Feldman v Finkelstein & Partners, LLP,
76 AD3d 703 [2010]). The facts pleaded are to be presumed to be
true and are to be accorded every favorable inference, although
bare legal conclusions as well as factual claims flatly
contradicted by the record are not entitled to any such
consideration (see Morone v Morone, 50 NY2d 481 [1980]; Gertler v
Goodgold, 107 AD2d 481 [1985], affirmed, 66 NY2d 946 [1985]).
When evidentiary material is considered, the criterion is
whether the proponent of the pleading has a cause of action, not
whether he has stated one (Guggenheimer v Ginzburg, 43 NY2d 268,
275, supra). This entails an inquiry into whether or not a
material fact claimed by the pleader is a fact at all and whether
a significant dispute exists regarding it (see, id.; accord,
Siegel, Practice Commentaries, McKinneyâs Cons Laws of NY,
Book 7B, CPLR C3211:25, at 39)â (Gershon v Goldberg,
30 AD3d 372 [2006]; Hispanic Aids Forum v Estate of Bruno,
16 AD3d 294, 295 [2005]; Sesti v N. Bellmore Union Free Sch.
Dist., 304 AD2d 551, 551-552 [2003]; Mohan v Hollander,
303 AD2d 473, 474 [2003]; Doria v Masucci, 230 AD2d 764,
765 [1996], lv. to appeal denied, 89 NY2d 811 [1997]; Rattenni v
Cerreta, 285 AD2d 636, 637 [2001]; Kantrowitz & Goldhamer v
Geller, 265 AD2d 529 [1999]; Mayer v Sanders, 264 AD2d 827,
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828 [1999]; Sotomayor v Kaufman, Malchman, Kirby & Squire,
252 AD2d 554 [1998]).
âA motion to dismiss pursuant to CPLR 3211(a)(1) may be
granted only where 'the documentary evidence that forms the basis
of the defense [is] such that it resolves all factual issues as a
matter of law, and conclusively disposes of the plaintiff's
claims'â (HSBC Bank USA, N.A. v Decaudin, 49 AD3d 694, 695
[2008], quoting Saxony Ice Co., Div. of Springfield Ice Co., Inc.
v Ultimate Energy Rest. Corp., 27 AD3d 445, 446 [2006]; see Leon
v Martinez, 84 NY2d at 88; Uzzle v Nunzie Ct. Homeowners Assn.,
Inc., supra; McMorrow v Dime Sav. Bank of Williamsburgh, 48 AD3d
646 [2008]; Sullivan v State of New York, 34 AD3d 443, 445
[2006]; Museum Trading Co. v Bantry, 281 AD2d 524, 525 [2001];
Nevin v Laclede Professional Prods., 273 AD2d 453, 453 [2000]).
Affidavits submitted by a defendant in support of the motion,
however, do not constitute documentary evidence (Berger v
Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2003]).
CPLR 3211 allows a plaintiff to submit affidavits but it
does not oblige him or her to do so on penalty of dismissal (see
Rovello v Orofino Realty Co.., 40 NY2d 633 [1976]). Such
affidavits may be received for the limited purpose of remedying
defects in the complaint but may not serve for purposes of
determining whether there is evidentiary support for the
pleadings (Id., at 40 N.Y.2d at 636; see also Leon v Martinez, 84
NY2d at 88; Berman v Christ Apostolic Church Intern. Miracle, 87
AD3d 1094 [2011]; Kempf v Magida, 37 AD3d 763 [2007]; McGuire v
Sterling Doubleday Enters., LP, 19 AD3d 660, 661 [2005]).
CPLR § 902 provides that "[w]ithin sixty days after the time
to serve a responsive pleading has expired for all persons named
as defendants in an action brought as a class action, the
plaintiff shall move for an order to determine whether it is to
be so maintained." This filing deadline is mandatory (Shah v
Wilco Systems, Inc., 27 AD3d 169, 173 [2005 ], lv. to app. dism.
in part, den. in part, 7 NY3d 859, 857 [2006]).
While class
certification is an issue that should be determined promptly (see
CPLR 902), a trial court has discretion to extend the deadline
upon good cause shown (see CPLR 2004;
Rodriguez v Metropolitan
Cable Communications, 79 AD3d 841 [2010] Argento v Wal-Mart
Stores, Inc., 66 AD3d 930 [2009]), such as the plaintiff's need
to conduct preclass certification discovery to determine whether
the prerequisites of a class action set forth in CPLR 901 (a) may
be satisfied (see Fortune Limousine Serv., Inc. v Nextel
Communications, 35 AD3d 350, 352 [2006]; Dunn v Consolidated
Edison Co. of N.Y., 74 AD2d 816, 816-817 [1980]; Galdamez v
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Biordi Constr. Corp.., 50 AD3d 357, 358 [2008]; see generally
Stern v Carter, 82 AD2d 321 [1981]). "The purpose of preclass
certification discovery is to ascertain the dimensions of the
group of individuals who share plaintiff's grievance" ( Rodriguez
v Metropolitan Cable Communications, 79 AD3d at 842-843, quoting
Smith v Atlas Intl. Tours, 80 AD2d 762, 764 [1981]; see
Gewanter v Quaker State Oil Ref. Corp., 87 AD2d 970 [1982]).
Plaintiff Talbi has neither moved to have the alleged class
certified nor sought leave to extend the deadline for class
certification.
Plaintiff admittedly did not serve any discovery
demands until October 6, 2011, and discovery is now stayed
pending the determination of this motion (CPLR 3214[b]).
Plaintiff has failed to establish that discovery is necessary in
order to extend the deadline for class certification. Although
the complaintâs prayer for relief seeks certification of the
class, in the absence of a motion by the plaintiff to either
certify the class, or to extend the deadline for class
certification, the court declines to extend a deadline.
Therefore, that branch of defendantsâ motion which seeks to
dismiss the class action is granted, and plaintiffâs complaint
will be treated as an individual action.
Defendant Michael Mellis, the President of Boulevard Taxi
Leasing states in his affidavit that Boulevard leases medallions
with taxicabs on a daily basis to independent drivers licensed by
the Taxi and Limousine Commission. He states that all
independent drivers are required to sign a daily lease agreement
in order to be eligible to drive a taxicab owned by Boulevard,
and if new leases are not signed on subsequent days the terms of
the original lease apply. Mr. Mellis states that Mr. Talbi
either signed a lease or worked under the terms of the lease he
originally signed for each day that he drove a Boulevard owned
taxicab. Mr. Mellis states that he never signed a lease in his
individual capacity; that any lease signed by plaintiff was with
Boulevard; and that he never required plaintiff or any other
driver to pay him a tip.
Mr. Mellis states that Boulevardâs
employee Steve Gounaris did not execute a lease with plaintiff in
his individual capacity, nor did Gounaris require plaintiff to
pay him a tip. Finally, Mr. Mellis states that Mike Mellis
Brokerage Inc. is an entity handling the insurance coverage for
the taxis and black cars and that it did not lease taxis to
plaintiff or anyone else.
With respect to the first cause of action, defendants
assert that any contract that existed was between plaintiff and
Boulevard Taxi Leasing Inc. Defendants thus seek to dismiss the
first cause of action as to Mike Mellis Brokerage, Inc, Michael
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Mellis and Steve Gounaris on the grounds of lack of privity.
Plaintiff, in response to defendants discovery demands,
produced copies of detailed receipts that he received from the
defendants in connection with the leases of the taxicabs.
Defendants thus assert that plaintiffâs claim for breach of
contract should be dismissed as to all defendants, as plaintiff
cannot establish that he was not provided with detailed receipts.
Defendants also assert that plaintiffâs own documentary evidence
fails to establish that he was required to work on holidays.
Defendants further assert that plaintiffâs allegations have no
basis in fact, in that plaintiffâs own documents establish that
he was required to work seven days a week on only one occasion
beginning October 10, 2010; that there are no records or
documents reflecting that plaintiff was charged for days he did
not work; that the Taxi and Limousine Commission does not require
a written lease agreement, and that the defendants utilized a
standard lease agreement that all drivers were required to sign
in order to lease a taxicab. Defendants assert that plaintiffâs
claims are barred by documentary evidence.
Plaintiffâs first cause of action clearly states a claim
for breach of contract, and the documentary evidence submitted
herein is insufficient to defeat plaintiffâs claim. In view of
the fact that plaintiff alleges that the defendants failed to
provide him with a copy of the written lease agreement, it is
not at all surprising that plaintiff in response to defendantsâ
discovery demand has not produced the written agreement.
Defendants, however, assert that plaintiff executed a written
lease agreement. In the absence of the lease agreement the court
is unable to determine whether the terms complied with the
applicable regulations issued by the Taxi and Limousine
Commission; whether the daily lease was extended for any period
beyond the time period provided in the agreement; who were the
parties to the lease and in what capacity the defendants may have
executed the lease.
Although Boulevard Taxi Leasing provided plaintiff with
detailed receipts for the leased vehicles, this does not defeat
plaintiffâs claim in its entirety, as plaintiff alleges that the
amounts reflected in these receipts include improper charges and
overcharges, in breach of the leasing agreement and the
applicable regulations of the Taxi and Limousine Commission.
The statements made by Mr. Mellis in his affidavit with
respect to Mr. Gounarisâ alleged conduct lacks probative value,
as Mellis lacks personal knowledge as to whether Mr. Gournaris
ever solicited a tip from the plaintiff.
In addition, as Mr.
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Mellis has failed to set forth his relationship to Mike Mellis
Brokerage, Inc., the statements made in his affidavit on
behalf of this entity lack probative value.
Defendantsâ second and third causes of action seek to
recover damages for unjust enrichment and quantum meruit. "As a
general rule, the existence of a valid and enforceable written
contract governing a particular subject matter precludes recovery
in quasi-contract on theories of quantum meruit and unjust
enrichment for events arising out of the same subject matter"
(Marc Contr., Inc. v 39 Winfield Assoc., LLC, 63 AD3d 693, 695
[2009]; see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d,
382, 388 [1987]; Goldman v Metropolitan Life Ins. Co., 5 NY3d
561, 572 [2005]; Grossman v New York Life Ins. Co., 90 AD3d 990
[2011]; Yenrab, Inc. v 794 Linden Realty, LLC, 68 AD3d 755, 758759 [2009] ). The theory of unjust enrichment lies as a quasicontract claim. It is an obligation the law creates in the
absence of any agreement (see State of New York v Barclays Bank
of N.Y., 76 NY2d 533, 540 [1990]).
Plaintiff, in his first cause of action alleges that between
2008 and 2010 defendants required plaintiff to lease a taxi cab
on a daily, rather than a weekly basis. Defendants assert that
plaintiff entered into a daily lease agreement with Boulevard
Taxi Leasing, and that said lease, by its terms remained in
effect after the daily time period ended. Defendants, however,
have not submitted a copy of the lease agreements, and have not
established the terms of any oral lease agreement. Defendants,
therefore, have failed to establish that a valid and enforceable
contract exists between the parties, which was in effect for the
entire two year period. The court, therefore, is unable to
determine at this time whether the third cause of action is
repetitive of the first cause of action for breach of contract.
Accordingly, defendantsâ motion to dismiss the complaint
is granted to the extent that plaintiffâs claims based upon a
class action are dismissed, and is denied in all other respects.
Dated:
April 3, 2012
Long Island City, NY
______________________________
ROBERT J. McDONALD
J.S.C.
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