Henan Chengxin Overseas Affairs Servs. Co., Ltd. v EEGH, L.P.

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Henan Chengxin Overseas Affairs Servs. Co., Ltd. v EEGH, L.P. 2020 NY Slip Op 31672(U) May 26, 2020 Supreme Court, New York County Docket Number: 652391/2019 Judge: Joel M. Cohen 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. [*[FILED: 1] NEW YORK COUNTY CLERK 05/26/2020 03:43 P~ NYSCEF DOC. NO. 38 INDEX NO. 652391/2019 RECEIVED NYSCEF: 05/26/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART IAS MOTION 3EFM -----------------------------------------------------------------------------------x HENAN CHENGXIN OVERSEAS AFFAIRS SERVICES CO., LTD., INDEX NO. MOTION DATE Plaintiff, -v- 652391/2019 11/14/2019 MOTION SEQ. NO. EEGH, L.P., JOHN DOES 1-10, JANE DOES #1-10, COMPANY ABC #1-10 002 DECISION+ ORDER ON MOTION Defendant. -----------------------------------------------------------------------------------x HON. JOEL M. COHEN: The following e-filed documents, listed by NYSCEF document number (Motion 002) 22, 23, 24, 25, 26, 30, 31, 32, 33, 34 DISMISSAL were read on this motion for In January 2015, defendant EEGH, L.P ("EEGH") hired plaintiff Henan Chengxin Overseas Affairs Services Co., Ltd. ("Henan"), a Chinese corporation, to find investors for EEGH's real estate projects in the New York Metropolitan Area (the "Agreement"). Pursuant to a copy of the Agreement submitted by EEGH, and not disputed by Henan, Henan was to receive a $50,000 finder's fee for each investor it successfully referred. In addition, Henan could receive additional "Success Fees" if it successfully referred at least five investors within the first four months or eight investors within the first eight months following the Agreement's execution. Henan alleges that it received the finder's fees for eleven investors it referred to EEGH (See NYSCEF 19 [Am. Compl. iJ 24]) but that EEGH refused to pay the applicable Success Fees with respect to those investors (Id. at iii! 31, 46). Significantly, Henan does not allege that it successfully referred at least five of those investors within the first four months after the 652391/2019 HENAN CHENGXIN OVERSEAS vs. EEGH, LP. Motion No. 002 1 of 5 Page 1of5 [*[FILED: 2] NEW YORK COUNTY CLERK 05/26/2020 03:43 NYSCEF DOC. NO. 38 P~ INDEX NO. 652391/2019 RECEIVED NYSCEF: 05/26/2020 Agreement's execution or at least eight investors within the first eight months after the Agreement's execution. In motion sequence number 002, EEGH moves to dismiss Henan' s Amended Complaint pursuant to CPLR §§ 3211(a)(1) and (7). For the reasons set forth below, EEGH's motion to dismiss is granted. 1 LEGAL ANALYSIS On a motion to dismiss pursuant to CPLR §§ 3211 (a)(1) and (7), the Court must "accept the complaint's factual allegations as true, according to plaintiff the benefit of every possible favorable inference, and determining only whether the facts as alleged fit within a cognizable legal theory." (Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 AD3d 367, 270-71 [1st Dept 2014] [internal quotation marks and citation omitted]; see also Leon v. Martinez, 84 NY2d 83, 88 [1994]). However, bare legal conclusions and "factual claims which are either inherently incredible or flatly contradicted by documentary evidence" are not "accorded their most favorable intendment." (Summit Solomon & Feldman v. Lacher, 212 AD2d 487, 487 [1st Dept 1995]). Dismissal under CPLR § 3211 (a)(l) is warranted where documentary evidence "conclusively establishes a defense to the asserted claims as a matter oflaw." (Leon, 84 NY2d at 88). Here, EEGH offers the Agreement as documentary evidence in support of its motion. A. The Agreement Submitted by EEGH is Documentary Evidence To be considered as documentary evidence, a document's "content must be essentially undeniable and, assuming the verity of the paper, and the validity of its execution, will itself The Affirmation submitted by Henan' s counsel does not comply with the Part 3 Practice Rules, which require that legal argument be contained in a Memorandum of Law. Counsel is cautioned to follow the Court's rules in the future. 1 652391/2019 HENAN CHENGXIN OVERSEAS vs. EEGH, LP. Motion No. 002 2 of 5 Page 2 of 5 [*[FILED: 3] NEW YORK COUNTY CLERK 05/26/2020 03:43 P~ NYSCEF DOC. NO. 38 INDEX NO. 652391/2019 RECEIVED NYSCEF: 05/26/2020 support the ground on which the motion is based." (Amsterdam Hospitality Grp., LLC v. Marshall-Alan Assoc., Inc., 120 AD3d 431, 432 [1st Dept 2014] [internal quotation marks and citation omitted]). Here, the copy of the Agreement submitted by EEGH is signed by a representative of Henan, but not by EEGH. Moreover, as Henan points out, the copy of the Agreement does not include the May 18, 2015 amendment that is referenced in the Complaint. Henan does not, however, suggest that the Agreement submitted with the motion to dismiss is inaccurate or that the May 2015 amendment is relevant to the dispute. Given that Henan does not dispute that the document - which Henan itself signed accurately sets forth the relevant terms of the parties' agreement with respect to its entitlement to Success Fees, the Agreement (despite its imperfections) properly is considered documentary evidence for purposes of this motion. (See Options Group, Inc. v. Vyas, 91AD3d446, 447 [1st Dept 2012]; see also Flores v. Lower East Side Service Center, Inc., 4 NY3d 363, 369 [2005] ["an unsigned contract may be enforceable, provided there is objective evidence establishing that the parties intended to be bound"]; see also NYSCEF 33 ["Email from Plaintiff to Defendant January 27, 2015" stating that Agreement was executed on January 1, 2015]). B. Henan Has Not Pleaded Any Viable Causes of Action To state a viable claim for breach of contract, Henan must allege facts sufficient to show the existence of a contract, plaintiff's performance thereunder, and defendant's breach thereof, resulting in damages to plaintiff. (See Harris v. Seward Park Housing Corp., 79 AD3d 425, 426 [1st Dept 2010]). According to the Agreement, Henan was entitled to Success Fees only if it successfully referred no less than five investors to EEGH within four months of the Agreement's 652391/2019 HENAN CHENGXIN OVERSEAS vs. EEGH, LP. Motion No. 002 3 of 5 Page 3 of 5 [*[FILED: 4] NEW YORK COUNTY CLERK 05/26/2020 03:43 NYSCEF DOC. NO. 38 P~ INDEX NO. 652391/2019 RECEIVED NYSCEF: 05/26/2020 execution or no less than eight investors within eight months. (See NYSCEF 25 [Agreement§ 5]). As noted above, although Henan alleges that it satisfied the obligations necessary for it to receive finder's fees pursuant to the Agreement ($50,000 per referral), it does not allege that it successfully referred the required number of investors to EEGH within the specified amount of time to qualify for Success Fees. Therefore, Henan fails to state a claim for breach of contract. Henan also fails to state viable claims for promissory estoppel and unjust enrichment. Where there is a valid and enforceable contract that governs a subject, recovery in quasi-contract, such as unjust enrichment and promissory estoppel, cannot be maintained for events arising out of that same subject. (See Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 NY2d 382, 388 [1987]). The Court will grant Henan thirty days to seek leave to file a Second Amended Complaint if it believes it can remedy the deficiencies noted above. CONCLUSION In accordance with the foregoing, it is ORDERED that EEGH' s motion to dismiss is granted and Henan' s complaint is dismissed without prejudice; it is further ORDERED that Henan has thirty days to seek leave to amend and submit a Second Amended Complaint; and it is further ORDERED that if after thirty days, Henan has not sought leave to amend and submitted a Second Amended Complaint, EEGH can submit a judgment dismissing the case with prejudice. This constitutes the Decision and Order of the Court. 652391/2019 HENAN CHENGXIN OVERSEAS vs. EEGH, LP. Motion No. 002 4 of 5 Page 4 of 5 [*!FILED: 5] NEW YORK COUNTY CLERK 05/26/2020 03 :43 PMI NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 05/26/2020 5/26/2020 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: INDEX NO. 652391/2019 JOEL M. COHEN, J.S.C. ~ CASE DISPOSED GRANTED D DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN 652391/2019 HENAN CHENGXIN OVERSEAS vs. EEGH, LP. Motion No. 002 5 of 5 ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page 5 of 5

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