G & G Elec. Supply Co. Inc. v Comer
Annotate this CaseDecided on July 20, 2017
Civil Court of the City of New York, Queens County
G & G Electric Supply Co. Inc., Plaintiff,
against
John Comer and AL-AN ELEVATOR MAINTENANCE CORPORATION, Defendants.
CV-5337/2017
For Plaintiff: Amos Weinberg, Esq.
For Defendant: Kenneth Gunsher, Esq.
Donna Marie Golia, J.
Defendants John Comer and Al-An Elevator Maintenance Corporation move pursuant to Civil Practice Law and Rules ("CPLR") 3211 (a) (1) & (7) to dismiss the complaint on grounds that documentary evidence conclusively disproves the allegations in the plaintiff's complaint, and that the complaint fails to state a cause of action. The defendants also move, should the Court deny their motion to dismiss, for a change in venue to Bronx County, as none of the parties are residents of or conduct business in Queens County. Based upon the papers submitted, the defendants' motion to dismiss is denied, and the defendants' motion for a change in venue is [*2]granted, as explained more fully below.
On a motion to dismiss pursuant to CPLR 3211 (a) (1), the movant "must present documentary evidence that resolves all factual issues as a matter of law and conclusively disposes of the plaintiff's claim" (Melnicke v Brecher, 65 AD3d 1020, 1020-21 [2d Dept 2009]). Unless "it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists", the complaint should not be dismissed (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Moreover, "[i]n order for evidence to qualify as documentary, it must be unambiguous, authentic, and undeniable" (Granada Condominium III Ass'n v Palomino, 78 AD3d 996, 996—97 [2d Dept 2010]).
In support of its motion, the defendants submit copies of 21 canceled checks which were issued from defendant Al-An Elevator Maintenance Corporation to the plaintiff from October 2014 to December 2016. The defendants contend that these documents conclusively disprove the plaintiff's allegation that there remains an unpaid balance of $17,813.97 for the invoices issued from March 11, 2013 to May 20, 2014. In opposition to the motion, the plaintiff argues that these payments were applied to other invoices between the parties, and that the canceled checks do not conclusively refute the allegations in the complaint that the sued-upon invoices remain unpaid.
It is well settled that "a debtor has the right to make the appropriation of payments to particular obligations, and if the debtor fails to do so, the right passes to the creditor" (82 NY Jur. 2d Payment and Tender § 59; see also Camp v Smith, 136 NY 187, 201 [1892]; Baiz v Baiz, 10 AD3d 375 [2d Dept 2004]; Beyer Bros. of Long Is. Corp. v Kowalevich, 89 AD2d 1005 [2d Dept 1982]; F. H. McGraw & Co. v Milcor Steel Co., 149 F2d 301, 305 [2d Cir 1945] [applying New York law]). The debtor's instructions as to the application of payment, whether express or implied, must be conveyed to the creditor either before or at the time of payment (see e.g. Wanamaker v Powers, 102 AD 485, 491 [2d Dept 1905], affd, 186 NY 562 [1906] ["After [payment] the money has ceased to be his, and is no longer subject to his control"]).
In this case, none of the canceled checks annexed to the defendants' motion refer to any particular invoice, indebtedness, or obligation. Here, the defendants failed to specify to which invoices the payments should have been applied. The plaintiff claims — and correctly so — that in the absence of any instructions from the defendants as to how the checks were to be applied, it was entitled to apply these checks as it saw fit, to its own benefit (see Baiz, supra at 375). These canceled checks, therefore, give rise to a question of fact as to the specific indebtedness to which the payments were applied. Accordingly, since the canceled checks do not "resolve[] all factual issues as a matter of law and conclusively dispose[] of the plaintiff's claim", the branch of the defendant's motion seeking dismissal based on documentary evidence is denied (Melnicke v Brecher, supra at 1020-21).
The defendants also move to dismiss the complaint pursuant to CPLR 3211 (a) (7), arguing that the complaint fails to state a cause of action. On such a motion to dismiss the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The court must accept each factual allegation as true and make no effort to evaluate the ultimate merits of the case (219 Broadway v Alexander's, 46 NY2d 506 [1979]).
The complaint alleges two causes of action, seeking recovery for breach of contract and account stated. In this case, assuming the facts alleged in the complaint as true, the plaintiff could establish a prima facie case on its breach of contract cause of action. "In order to plead a [*3]breach of contract cause of action, a complaint must allege the provisions of the contract upon which the claim is based" (Atkinson v Mobil Oil Corp., 205 AD2d 719, 720 [2d Dept 1994]). The complaint alleges with specificity the agreement between the parties, the plaintiff's performance under the agreement, the defendants' failure to perform under the agreement, and the resulting damages, to wit, the outstanding balance under the invoices. To the extent the defendants argue under this branch of the motion that the documentary evidence submitted evinces payment of the invoices in question, they seek an evaluation of the ultimate merits of the case, which inquiry is impermissible on a motion to dismiss pursuant to CPLR 3211 (a) (7) (see e.g. Carbillano v Ross, 108 AD2d 776, 777 [2d Dept 1985]). Accordingly, the branch of the defendants' motion seeking dismissal of the plaintiff's first cause of action pursuant to CPLR 3211 (a) (7) is denied.
The branch of the defendant's motion seeking dismissal of the plaintiff's second cause of action, seeking to recover on an account stated, is likewise denied. "An account stated exists where a party to a contract receives bills or invoices and does not protest within a reasonable time" (Bartning v Bartning, 16 AD3d 249, 250 [1st Dept 2005]). The complaint alleges that the defendants were sent invoices and retained them without objection, giving rise to an account stated. Assuming those facts alleged as true, the plaintiff could establish a prima facie case on its account stated cause of action. Accordingly, the branch of the defendants' motion seeking dismissal of the plaintiff's second cause of action pursuant to CPLR 3211 (a) (7) is denied.
The Court turns next to the branch of defendants' motion seeking a change of venue to the Civil Court, Bronx County. The defendants seek this relief pursuant to to Article 5 of the Civil Practice Law and Rules, and indeed both parties make reference to Article 5 in their motion papers. However, venue in the New York City Civil Court is in fact governed exclusively by Article 3 of the New York City Civil Court Act ("CCA") (see e.g. Siegel, NY Prac. § 116 (5th ed.) [Civil Court has "its own venue provisions and [is] thus not governed by the venue-laying provisions of the CPLR"; City & Suburban Delivery Sys., Inc. v Green's Cards & Gifts, Inc., 167 Misc 2d 283, 284 [Civ Ct Queens County 1996] [reviewing difference in treatment of corporations' domicile for venue purposes between CPLR § 503 and CCA § 305]).Notwithstanding the defendants' reliance on the CPLR, the defendants' Notice of Motion included a general relief clause, and defense counsel makes reference in his affirmation in support of the motion to the provisions of the Civil Court Act. Since the proof offered supports the relief requested under the standard set forth in the Civil Court Act, and no prejudice will inure to the plaintiff, the Court construes the defendants' motion as one pursuant to CCA § 306 to change venue within the New York City Civil Court (see e.g. Mastandrea v Pineiro, 190 AD2d 841, 842 [2d Dept 1993]).
Pursuant to CCA §306, where an action is commenced in "the wrong county", the court "must upon the motion of a party defendant transfer the action or proceeding to a proper county." The Court must first determine whether Queens County is the "wrong" venue for this action, and if so, which of the five boroughs would be proper.
The Civil Court Act provides that in an action commenced in Civil Court for money damages which does not arise out of a consumer credit transaction, venue is proper in any "county in which one of the parties resides" (CCA § 301 [a]). Where no party resides within the City of New York, venue is proper in any "county in which one of the parties has regular employment or a place for the regular transaction of business" (CCA § 301 [b]). If no party lives, works, or has a place of business in the City of New York, venue is proper "in the county in which the cause of [*4]action arose; or if none of the foregoing are applicable, in any county" (CCA § 301 [c], [d]).
Defendant John Comer, a natural person, resides in Westchester County, and is employed in the Bronx (see Comer Afft. At ¶4). Since defendant Comer neither lives nor works in Queens County, but does work in another county in New York City, the propriety of venue in Queens County must be supported by the county of residence of one of the two corporate parties.
For venue purposes, a "corporation shall be deemed a resident of any county wherein it transacts business, keeps an office, has an agency or is established by law" (CCA § 305 [b]). Plaintiff G & G Electric Supply Co. Inc. is incorporated in New York County (see Defendants' Exh. B), while defendant Al-An Elevator Maintenance Corp. is incorporated in Westchester County (see Defendants' Exh. C). Although any transaction of business in Queens County by either corporation would be sufficient to render Queens County the proper venue for the instant action, neither party makes any such allegation in their motion papers, or provides any evidence to that effect (see Bodt Afft. at ¶7 ["defendants having done business in the City of New York"]; Plaintiff's Exh. A [reflecting sales of goods from plaintiff in New York County to defendant Al-An in the Bronx]).
In the absence of any evidence or sworn testimony tending to show that either of the corporate parties "transacts business, keeps an office, has an agency or is established by law" in Queens County, the Court finds that none of the parties to this action resides in Queens County (see CCA § 305 [b]; City & Suburban Delivery Sys., Inc., supra at 284). Accordingly, pursuant to CCA § 301 [b], venue would be proper in either the Bronx, where defendant Comer is employed and defendant Al-An transacts business, or New York County, where plaintiff G & G transacts business. Since Queens County is not the proper venue for this action, the Court must grant the branch of the defendants' motion seeking a change in venue to Bronx County (see CCA § 306).
For the foregoing reasons, the branch of the defendant's motion seeking dismissal of the action is denied, and the branch of the defendant's motion seeking a change in venue to the Civil Court, Bronx County is granted.
Upon service of a copy of this order with notice of entry and payment of the appropriate fee, if any, the Clerk of the Civil Court, Queens County is directed to deliver to the Clerk of the Civil Court, Bronx County all papers filed in this action, and certified copies of any minutes or entries.
This is the Decision and Order of the Court.
Dated: July 20, 2017
________________________
Donna-Marie Golia, JCC
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
