Anaxos, LLC v Right Temp Mech. Inc.

Annotate this Case

Download PDF

Anaxos, LLC v Right Temp Mech. Inc. 2021 NY Slip Op 33106(U) November 9, 2021 Supreme Court, Queens County Docket Number: Index No. 708489/2021 Judge: Denis J. Butler 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] QUEENS COUNTY CLERK 11/10/2021 03:53 PM INDEX NO. 708489/2021 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/10/2021 Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONOFABLE DENIS J. BUTLER Justice IAS Part FILED 11/10/2021 12 COUNTY CLERK QUEENS COUNTY ---------- ---------- ---------- ---------x ANA_._~OS, LLC, Index Number:708 489/202¼ Plaintiff( s), Motion Date: October 19, 2021 -againstRIGHT TEMP MECHANICAL INC., Motion Seq. No. :001 Defendant (s). ---------- ---------- ---------- ---------x The following papers read on this motion by defendant for an order pursuant to CPLR 321l(a)1'.3) , CPLR 3211(a)(l) , and CPLR 32ll(a)(7) , dismissing plaintiff' s complaint, and upon plaintiff' s cross-motio n seeking to consolidat e the action bearing Index No. 708489/202 1, with the action bearing Index No. 703172/202 1, in Supreme Court, Queens County, under Index No. 703172/202 1, for all purposes. Papers Numbered Notice of Motion, Affirmatio n, Exhibits . . . . . . . . . . . . . . . . . E5-9 Notice of Cross-Moti on/Affirma tion In Opposition , Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . El0-23 Affirmatio n in Opposition to Cross-Moti on . . . . . . . . . . . . . . . E24-29 Reply to Cross-Moti on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E30-31 Reply Affirmatio n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E32 Upon the foregoing papers, it is ordered that this motion and crossmotion are determined as follows: Plaintiff brings this action for breach of contract as an alleged third party beneficiar y of a contract between defendant Anaxos, LLC, and non-party, JLS Designs. Defendant brings this motion to dismiss plaintiff' s complaint pursuant to CPLR 3211 (a) (3), CPLR 3211 (a) (1), and CPLR 3211 (a) (7). The first branch of defendant' s motion seeks to dismiss plaintiff' s complaint alleging plaintiff lacks legal capacity to sue pursuant to CPLR 3211 (a) (3). A third party's right to enforce a contract is permitted, "when the third party is the only one who could recover for the breach of contract 1 of 4 [*FILED: 2] QUEENS COUNTY CLERK 11/10/2021 03:53 PM NYSCEF DOC. NO. 34 INDEX NO. 708489/2021 RECEIVED NYSCEF: 11/10/2021 or when it is otherwise clear from the language of the contract that there was an intent to permit enforcemen t by the third party. (Do¾mitory Auth. Of the State of N.Y. v. Samson Constr. Co., 30 N.Y. 3d 704 (2018)) "An intent to benefit the third party must be shown, and, absent such intent, the third party is merely an incidental beneficiar y with no right to enforce the particular contracts. " (Dormitory Auth. Of the State of N.Y. v. Samson Constr. Co., 30 N.Y. 3d 704 (2018)) "With respect to constructio n contracts, we have generally required express contractua l language stating that the contracting parties intended to benefit a third party by permitting that third party "to enforce [ a promisee' s] contract with another." ( Port Chester. Elec. Constr. Corp. V. Atlas, 40 NY2d 652 (1976)). "In the absence of express language, "[s]uch third parties are generally considered mere incidental beneficiar ies." (Dormitory Auth. Of the State of N.Y. v. Samson Constr. Co.,30N.Y .3d704 (2018)). ' Defendant contends plaintiff lacks legal capacity to bring this action, as plaintiff is not the sole intended third party beneficiar y of a contract between defendant Right Temp Mechanical Inc., and noq-party JLS Designs. In support, defendant submits the contract between defendant Right Temp. Mechanical Inc., and noE-party JLS Designs, wherein plain ti ff is not mentioned as an intended third party beneficiar y, and the contract language does not contain an enforcemen t mechanism for plaintiff to sue as a third party beneficiar y. ( See NYSCEF Doc. 8) Plaintiff, Anaxos LLC, in opposition , contends it has legal capacity to bring this action, as Anaxos LLC was the intended third-party beneficiar y of the contract between defendant Right Temp Mechanical Inc., and non-party JLS Designs. Plaintiff failed to demonstrat e that it was the sole third-part y beneficiar y who could recover for a breach of contract, or, that the contract between defendant ~ight Temp Mechanical Inc., and non-party JLS Designs demonstrat es an intent to permit enforcemen t by plaintiff. (Dormitory Auth. Of the State of N.Y. v. Samson Constr. Co., 30 N.Y. 3d 704 1:2018)). "In the absence of express language, "[s]uch third parties are generally considered mere incidental beneficiar ies." (Dormitorx Auth. Of the State of N.Y. v. Samson Constr. Co., 30 N.Y. 3d 704 (2018):). As such, the first branch of defendant' s motion seeking to dismiss plaintiff' s complaint pursuant to CPLR 3211 (a) (3) is granted. A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted only if the "documenta ry evidence resolves all factual issues as a matter of law, and conclusive ly disposes of the plaintiff' s claim." Contracts qualify as documentar y evidence. (Fontanetta v. Doe, 73 A.D. 3d 78 (2d. Dept. 2010)). Defendant contends plaintiff is not in privity of contract with defendant. In support, defendant submits a contract solely between 2 2 of 4 [*FILED: 3] QUEENS COUNTY CLERK 11/10/2021 03:53 PM NYSCEF DOC. NO. 34 INDEX NO. 708489/2021 RECEIVED NYSCEF: 11/10/2021 defendant and non-party JLS Designs which demonstrates plaintiff is not mentioned as the intended third party beneficiary to the contract. In opposition, plaintiff contends it was the intended beneficiary of the contract between defendant, and non-party JLS Designs. As plaintiff failed to demonstrate either, that it was the sole third-party beneficiary who could recover for a breach of contract, or, that the contract language demonstrates "an intent to permit enforcement by the third party," the contractual evidence submitted by defendant fails to resolve all factual issues as a matter of law. (Dormitory Auth. Of the State of N.Y. v. Samson Constr. Co., 30 N.Y. 3d 704 {2018)). As such, the second branch of defendant's motion seeking to dismiss plaintiff's complaint pursuant to CPLR 321l{a) (1) is granted. The third branch of defendant's motion seeks to dismiss plaintiff's complaint pursuant to CPLR 3211(a) (7). In determining a motion brought pursuant to CPLR 3211 (a) (7), ~the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Antoine v Kalandrishvil i, 150 AD3d 941, 941 [2d Dept 2017]. "Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery." (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017]). "Where, as here, evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one." (Hallwood v Incorporated Vil. of Old Westbury. 130 AD3d 571, 572 [2d Dept 2015]; Agai v Liberty Mut. Agency Corp., 118 AD3d 830 [2d Dept 2014]). Plaintiff failed to demonstrate either, that it was the sole thirdparty beneficiary who could recover for a breach of contract, or, that the contract language demonstrates "an intent to permit enforce~ent by the third party." (Dormitory Auth. Of the State of N.Y. v. Samson Constr. Co., 30 N.Y. 3d 704 (2018)). As such, plaintiff failed to state a cause of action pursuant to CPLR 321l(a) (7). As such, the third branch of plaintiff's motion seeking to dismiss plaintiff's complaint pursuant to CPLR 321l(a} (7) is granted. As the first, second, and third branches of defendant's motion to dismiss this action pursuant to CPLR 3211 (a) (3), CPLR 3211 (a) (1), and CPLR 3211(a) (7), are granted, plaintiff's cross-motion seeking to consolidate this action bearing Index No. 708489/2021, with the action 3 3 of 4 [*FILED: 4] QUEENS COUNTY CLERK 11/10/2021 03:53 PM NYSCEF DOC. NO. 34 INDEX NO. 708489/2021 RECEIVED NYSCEF: 11/10/2021 bearing Index No. 703172/2021, in Supreme Court, Queens County, is denied as moot. Accordingly, the first branch of defendant's motion is granted, the second branch of defendant's motion is granted, the third branch of defendant's motion is granted, and plaintiff's cross-motion is denied. Defendant shall serve a copy of this Decision and Order upon defendants and upon the clerk of Queens County, within fifteen (15) days of entry of this Decision and Order. This constitutes the Decision and Order of the court. Dated: November 3/, 2021 Denis J. ~.s.c. FILED 11/10/2021 COUNTY CLERK QUEENS COUNTY 4 4 of 4

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.