National Pub. Energy, Inc. v Prospect Capital Corp.

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National Pub. Energy, Inc. v Prospect Capital Corp. 2011 NY Slip Op 33644(U) July 25, 2011 Supreme Court, Nassau County Docket Number: 000572-11 Judge: Timothy S. Driscoll 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] SC1 SUPREME COURT- STATE OF NEW YORK SHORT FORM ORDER Present: HON. TIMOTHY S. DRISCOLL Justice Supreme Court --------------------------------------------------------- JI NATIONAL PUBLIC ENERGY, INC., Plaintiff TRIAL/IAS PART: 20 NASSAU COUNTY IndeJI No: 000572Motion Seq. No. : 1 -against- Submission Date: 5/24/11 PROSPECT CAPITAL CORPORATION flka PROSPECT ENERGY CORPORATION, Defendant. -------------------------------------------------------------------JI The following papers having been read on this motion: Notice of Motion , Affirmation in Support and EJIhibit...................... Memorandum of Law in . Support.............................................................. Affirmation in Opposition and EJIhibits.......................................... Reply Affirmation in Further Support..................................................... This matter is before the Cour for decision on the motion filed by Defendant Prospect Capital Corporation f/ka Prospect Energy Corporation ("Defendant" ) on March 15 submitted on May 24 , 2011. For the reasons set fort below, 2011 and the Cour denies the motion. BACKGROUND A. Relief Sought Defendant moves for an Order , pursuant to CPLR 3211(a)(7), granting Defendant's motion to dismiss the Verified Complaint (" Complaint" Plaintiff National Public Energy, Inc. ("Plaintiff' ) opposes Defendant' s motion. B. The Paries ' History The Complaint (" Complaint" ) (Ex. A to Levine Aff. in Supp. ) alleges as follows: On or about April of 2006 , Defendant entered into a contract (" Contract" ) with Plaintiff [* 2] pursuant to which Defendant retained Plaintiff to perform project management , development and consulting services. Plaintiff alleges that Greg Blair (" Blair ), the President of Plaintiff, entered into the Contract , an oral contract , with John F. Bar II and Grier Eliasek, the Presidents of Defendant corporation. Bar and Eliasek allegedly had the authority to enter into contracts on behalf of Defendant. Plaintiff alleges that it fulfilled its obligations under the Contract and that Defendant made payments to Plaintiff in 2006 and 2007 for services rendered. Plaintiff alleges that Defendant failed to remit payments to Plaintiff for services rendered by Plaintiff in 2008 pursuant to the Contract. The Complaint contains two (2) causes of action. The first, sounding in fraud , alleges that Defe11dant, through its employees , made false representations to Plaintiff to induce Plaintiff to enter into the Contract " for the puroses of stealing Plaintiffs ' services for their own financial benefit" (Compl. at' 23). Plaintiff also seeks punitive damages in the first cause of action. In the second cause of action , Plaintiff Defendant breached the agreement between the paries. Plaintiff now withdraws its fraud claim (Croutier Aff. in Opp. at 1 4). In response to Defendant' s argument that the breach of contract claim lacks adequate specificity, counsel for Plaintiff (" Plaintiff s Counsel" ) affirms that Defendant " has three boxes of correspondence between the paries and.. .is fully aware that the instant action is a result of defendant's failure to pay the plaintiff for services rendered as agreed" (id. at' 10). Plaintiffs Counsel also provides copies of e-mails (Exs. A and B to Croutier Aff. in Opp. ) that, he submits , demonstrate Defendant' s knowledge of the specifics of this action. In reply, Defendant's counsel submits that Plaintiffs reference to boxes of documents and emails does not satisfy the requirement that the Complaint provide the specific terms of the contract on which liability for breach is predicated. C. The Paries ' Positions Defendant submits that the remaining breach of contract cause of action is not viable because , other than alleging the approximate date when the contract was formed , Plaintiff has failed to provide adequate allegations to support a breach of contract claim , such as the nature of the contractual obligation alleged to have been violated , or the nature of the alleged breach. Plaintiff opposes Defendant' s motion , submitting that it has adequately alleged the [* 3] Plaintiff alleges that the Complaint is suffcient because it elements of a breach of contract. alleges that Defendant "retained the plaintiff to perform ajob , the plaintiff performed that job and the defendant failed to pay the plaintiff as promised" (Crouiter Aff. in Opp. at' 5). Plaintiff notes that the Complaint alleges the time period when the Contract was allegedly formed, sets forth the nature of services to be provided and alleges that Defendant failed to compensate Plaintiff for those services. In reply, Defendant submits that Plaintiff may not rely on the documentation allegedly produced , or the emails to which Plaintiff refers , to remedy the insufficiencies of the Complaint. RULING OF THE COURT A. Stadards for Dismissal A motion interposed pursuant to CPLR ~3211 (a)(7), which seeks to dismiss a complaint for failure to state a cause of action , must be denied if the factul Guggenheimer v. Ginzburg, complaint constitute a cause of action cognizable at law. W 232 268 (1977); 511 Owners Corp. v. Jennifer entertning such an application , allegations contained in .(ealty Co. 98 N. the 43 N. 2d 144 (2002). When the Cour must liberally construe the pleading. In so doing, the Cour must accept the facts alleged as true and accord to the plaintiff every favorable inference v. Leon which may be drawn therefrom. Martinez 84 N. 2d 83 (1994). On such a motion however , the Cour will not presume as true bare legal conclusions Palazzolo flatly contradicted by the evidence. v. and factul claims which are Herrick, Feinstein 298 AD.2d 372 (2d Dept. 2002). B. Contract Cause of Action In a breach of contract action , plaintiff is required to plead the provisions of the contract on which the claim is based. Grifn Brothers v. Yatto Lupinski v. Vilage of Ilion 59 A. 68 A.D. 2d 1009 (3d Dept. 1979), citing 2d 1 050 (4th Dept. 1977). The complaint must inter alia set forth the terms of the agreement on which liability is predicated , either by express reference or by attching a copy of the contract. A.D.2d 927 C. 928 (3d Dept. 1987), citing, Chrysler Capital Corp. v. Hiltop Egg Farms, Inc. , 129 inter alia , Lupinski , supra. Application of these Principles to the Instat Action While mindful that the Complaint does not contain extensive details , the Cour denies Defendant's motion to dismiss the cause of action for breach of contract , based on the Cour' [* 4] conclusion that the Complaint adequately pleads the provisions of the Contract on which Plaintiffs claim is based. Specifically, the Complaint alleges that in April of2006 , the paries entered into an agreement pursuant to which Plaintiff would provide project management development and consulting services to Defendant. The Complaint alleges that Plaintiff provided those services and that Defendant failed to compensate Plaintiff for services provided in 2008. All matters not decided herein are hereby denied. Ths constitutes the decision and order of the Cour. The Cour directs counsel for the paries to appear before the Cour for a Preliminar Conference on August 30 2011 at 9:30 a. DATED: Mineola, NY July 25 , 2011 HON. TIMOTHY S. DRIS ENTERED JUL 2 9 2011 NASSAU COUNTY COUNTY CLERK' S OFFICE

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