Harvey Pub. Adjuster, LLC v Viet Media Agency

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Harvey Pub. Adjuster, LLC v Viet Media Agency 2022 NY Slip Op 32933(U) August 25, 2022 Supreme Court, Kings County Docket Number: Index No. 522665/2022 Judge: Leon Ruchelsman 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. INDEX NO. 522665/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:26 PM NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 08/30/2022 SUPREME COURT OF THE STATE .OF NEW YORK COUNTY OF KINGS : CIVIL·T.E RM: dQMM_~RCIAL 8 ----·--. -----. -------- --- .. --- . - . ----.-- .- .. x· HARVEY PUBLIC_ .l:\D_JUST.ER, Ll.C, ap.Q' MEIR ZARCHI, Peci·s.i,qn and order Plaintif .fs, ·rnde'x.. N"c:i. 522-6.65/2 022· - against '""" VIET MEDI.A AGENCY-, MINH TAM TRAN A./K/A TAMMY TRAN, ADAMS TRAN, -- .--~ ---- -------PRESENT--: HON. ~ Augu_st .2"-5, 2022 Defenda nts, ---~--~- ------ X LEON RUCHELSMAN The defenda nts have moved seeking to di.smi.ss the ~econd .thr.ough fifth .ea:u.ses· of action_- of the. complain t.- oppose the ·motion:. argumen ts held. The pla.i.nti ffs Papers wer:e submitte d by the parti,eB and Aft.er !-rearing ~11 the- c1.:_rgumen.ts this court now makes the followin g -determi nation. On Septemb er 26, 2017 the plainti ff Harvey Public .Adj"_uster ·.ente·red into ·an agre·.eme nt w"i th defenda nt Viet Media Agency whereby the cte·fenda nt. would provide advertis ..ing· and pub-lie relation s services on- behalf of. the plainti ff. wired $28-0, 00-0 tq the· defenda nt's account. The plainti ff The·· defehda nt -never speni: any of the money on beha-lf of the plainti ff and a seconci agreeme nt was entered into on Septetnh er 27, 2019: which abrogate d the fir$t agre$me: nt and stated that as of May 31, 2019: the defendan t owed the piainti ff $3~H,, 666. 67 and included a p_ayrnent scheciule which required full payment by Jan0t1ary 2021. agre~me nt is signed by The "S"econd Adams Tran twice, once .j..n an individu al capacity and once as the presiden t of Viet "Media Agency. [* 1] 1 of 5 INDEX NO. 522665/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:26 PM NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 08/30/2022 Further, the d:ef·enda nts issued a promisso ry note'. in the· amount of $415,297 . The note is signed by defendan t Tammy Tran in h-e:r individu al capacity and: by a represe ntative of Viet Media Agency; Accordin g to the .amended complai nt, the defe:nda" nts pa.id $44, Q'00 by January 2020 a.nd ceased $371,297 remains due. making any further payment s and that The complai nt ass-erts twq causes of action., for def al).l t and unjust enrichm ent . The defend9n t Adams 'I'ran has m:9ved seeking to d.:j_smis s.both causes of action and the remaip.:.:\...ng defenda nts ha:v.e moved seekin:g to disnd.ss . .• cause .of a.ction. tne second As not!;!d,, the mo.tion is opposed. Conclus ions of Law Tt is w.e.11 $.ettled.. th~t upon a riioti_oh to .distniss the court must d~terrnin ~., acceplin :g the alle_gat. ions bf the claims. as_ true, whethe-r the party can. s.ucce.ed upon any· r.e-asq.nab;L.e view of those _facts (.Strujan v. Kaufman 334 [2d. Dept., 20_19] ) . & Kahn, LLP-; 1-68 AD.3d 1114; 93 NYS3:d ·Further , a·11 the- alle.gati ons in. the .claims -a:re deemed true arid all _rea·son-a bl:e infE!renc e-s ma-y be drawn in favor o:e t,_11.e part;.y that filed such cla.ims (Feder·a:1 Nati.ana l Mortgage Associa tion v. Grc,ss:ma n, .205· AD3d 770, 165 NYS2d .892. [Zd· -Dept., 2022]) ~ :Whet}:ler the cl.aims will later survive a motion for summary judgme·n t, or whether the party· wili ultimate :ly be able to prove its claims, ,of course,. plays no part irt the determin ation of a pre-di~c overy CPLR §.3211 motion t.o dismis;3 2 [* 2] 2 of 5 INDEX NO. 522665/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:26 PM NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 08/30/2022 "( see, Moskowi tz v. Ma-slian sky, 198 Ab3d 6:~7, 155.· NYSJd 414 [2021]). There is hO dispute that Adams Tran did promisso ry ri.dte. not si,gn the The plaintif fs argue th~t a revie·w of the Texas taxable entity database reveals there is no entity in Texa.s called Viet Media. Agency and that therefor e the name 'Viet Me_dia -Ager.icy; must b_e ~n a.:ssumed _name for a sole Adams Tran. proprie torship of However~ both the .origina l complair: i.t and the_ amende'd complain t assert that Vie.t Media Agency is a Texas "entity' ' with a Texas addres.s (.see, Amended Comp:lai_n_t, !JI 4.) . Th(;! origina l and the: .a.mended complai nt a_ssert th.at Adarris Tran is doing busines.s a.s. Vie.t Media Agency at the s~me -address. (id., at 51 6). However, . there is no as.sertio n in the c_omplqin .t the t;!_nti ty Viet Me:dia .Agency _is a sc:>le .prop;ri- etorship of Ad·,ims Tran" Further, Viet -Med.;La Agency was served as a cmtporat .ion via the Ne:w York Sec·retar y of State, a.n ei){pe.dier :it o.nly availab le for co-rpora ti6ns :pursuan t tQ BCL §~04. whereby the Secretar y o·f State is the age,nt. of every domestic and a\Ithoriz ed .foreign ·.corpora tion 1,1p9n whom pro.des.s may be. se·rved. Mor.~ove r, while the first agre·eme nt is executed by Viet Media -A"gertcy, the second. a:greeme nt is executed by Viet Media Inc. Thus, th.:e parties proce~.d ed under the. reason.a ble assumpt ion that Viet Media Agertcy ,- ·repres·e nting .an umbrella or'<J"aniz ati·on,- is·. a Texa-s er1t1ty and ego of Adams Tran. not the mere alte·r Im;:leed, ·the oppositi on to the. ·motion raises 3· 3 of 5 ------ ------ ------ ------ -----······· -···-·- ·--···- ------ ------ [* 3] INDEX NO. 522665/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:26 PM NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 08/30/2022 Wholly new issues in this regard that contradic t earlier assertion s of the plaintiff s. To the extent any misnomer exists, the court in Lbhg Island Minimally Invasive Surgery P.C. v. Outsource Marketing Solutions , 33 Misc3d 1228(A)r 939 NYS2d 741 [SupreTT1e Court Nassau county 1011]) observed that "mistakes or irregular ities not affecting a substanti al right o.f a party are hot fatal. Mistakes relating to the name of a party invci1 ving a misnomer or rnisctescri ptio:n of the legal status of a party fall within the category of irregular ities which are subject to correction by amendment particula rly where the other party is not , and. was aware from the outset that a misdescri ption prejudiced . was involved" (id) . Therefore , based on the foregoing, the motion seeking to dismiss the first cause of action as to Adams Tran is granted. Turning to the motion seeking to dismiss the cause of action for unjust enrichmen tr it is well settled tha,t a claim of unjust enrichmen t is not available when it duplicate s or replaces a conventio nal contract or tort claim (§.§.§.r Corsello v. Verizon New York Inc., 18 NY3d 777, 944 NYS2d 732 [2012]) . As the court noted "unjust enrichmen t is not a catchall cause of action to be used when others fail" (id) . does not dispute this The plaintiff . . but argues that unjust enrichmen t could be available if the contract were declared unenforce able at some later point and should not be dismissed "at this early stag:e of the :proceedin gs'' 4 [* 4] 4 of 5 INDEX NO. 522665/2021 FILED: KINGS COUNTY CLERK 08/30/2022 01:26 PM NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 08/30/2022 (see , Memorandum of Law in Opposition t o Defendant's Motion to Dismiss , page 4). However , unjust enric hment is usually r eserved f or cases where th o ug h the defendan t committed no wrongdoing has r eceived money t o which he or she is not entit l ed (Corse ll o , supra) a truism inapplicab l e in t his case . explained i n Corse ll o , As th e court "p laintiffs a ll ege t h at Verizon committed actionab le wrongs, by trespass ing on or taking their property , and by deceiving them into t hin king the y were n ot entitled to compensation . To the extent that these claims succeed , t h e unjus t enrichment c l a i m is d u p l icative; if p laintiffs ' othe r claims are defect iv e, an unjust enrichment cla im cannot r emedy th e defects. The un just en richmen t claim should b e d i smissed" (i d) . Likewise, in t his case , if fo r whatever reaso n the contract will be dec l ared unen forc eable , the unjust enr ic hment claim wil l no t be available to remedy those defec t s . Consequen t ly , t he motion seeking to dismiss the claim o f unjus t enric hment is gran te d . So ordered . ENTER : DAT ED: Au gu st 25, 2022 Brooklyn N.Y. Hon. Leon Ruche lsman JSC 5 [* 5] 5 of 5

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