The following electronically filed papers were read upon this motion: Notice of Motion/Order to Show Cause 4-6, 8-13 Answering Papers 17-23 Reply 25 Briefs: Plaintiff’s/Petitioner’s Defendant’s/Respondent’s 7 Decision/Order Defendant moves this Court for an Order dismissing the complaint based upon a failure to state a cause of action pursuant to CPLR §3211(a)(7) and upon documentary evidence pursuant to CPLR §3211 (a)(1). Plaintiff Allure opposes the requested relief. In sum and substance, plaintiff seeks to recover from defendant what it alleges is a balance due and owing in the sum of $56,711.00, for “certain work, labor services & materials…for the period ending 07/07/16.” Plaintiff alleges breach of contract and account stated. It is apparently undisputed that Walison Corp. was the prime contractor on two building projects in the Bronx, New York. Walison Corp. entered into a sub-contract with an entity known as B.A.B. Mechanical Services Inc. Plaintiff in this action entered into a sub-contract with B.A.B. Mechanical to provide HVAC work at the two different project locations; accordingly, plaintiff was a sub-subcontractor in relation to defendant Walison Corp. CPLR §3211 (a)(1) Basis for Dismissal In order to succeed on a motion to dismiss based upon documentary evidence, “the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim” (Scadura v. Robillard, 256 AD2d 567 [2d Dept 1998]). “[I]t is clear that judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts and any other papers, the contents of which are ‘essentially undeniable,’ would qualify as ‘documentary evidence’” (Fontanetta v. John Doe 1, 73 AD3d 78, 84-85 [2d Dept 2010]). Affidavits do not constitute documentary evidence in the context of a motion brought pursuant to CPLR §3211 (a)(1) (Id at 86). In support of its motion, defendant submits, inter alia, the two subcontractor agreements between itself and B.A.B. Mechanical Services, two mechanic’s liens filed against the property owner by plaintiff Allure in Bronx County, and an affidavit of plaintiff’s president sworn to on December 14, 2018 and in filed in Bronx County in support of the continuation of one of the liens. Both of those mechanic’s liens dated January 5, 2017 name the party by whom the lienor (Allure) was employed and to whom the lienor furnished materials/performed services as B.A.B. Mechanical Services Inc. Allure alleges that it supplied and installed ductwork and sheet metal to B.A.B. Mechanical Services Inc. One lien states that the total amount unpaid is $22,877.50 and the other lien states that the total amount unpaid is 33,834.00. The total of these two unpaid balances is $56,711.50, which is fifty cents more than the amount alleged in the complaint in this action. The terms of the subcontractor agreements between defendant Walison Corp. and B.A.B. Mechanical contain the provision1 that, “[n]otwithstanding anything to the contrary contained herein, Contractor [Walison] may elect, in Contractor’s sole discretion, to make any payment requested by Subcontractor (B.A.B.) on behalf of a sub-subcontractor or supplier of any tier either directly to such sub-subcontractor or supplier, or jointly payable to Subcontractor and such sub-subcontractor or supplier…In no event shall any joint or direct payment be construed to create any (i) contract between Contractor and a sub-subcontractor or supplier, (ii) obligations from Contractor to such sub-subcontractor or supplier, or (iii) rights in such sub-subcontractor or supplier against Contractor.” Allure is not a signatory to either of the subcontractor agreements between Walison and B.A.B., and there is no evidence of any separate contract between Allure and Walison. Generally, to state a cause of action sounding in breach of contract, a plaintiff must allege “the existence of a contract, the plaintiff’s performance under the contract, the defendant’s breach of that contract, and resulting damages” (JP Morgan Chase v. J.H. Electric of New York, Inc., 69 AD3d 802, 803 [2d Dept 2010]; Furia v. Furia, 116 AD2d 694 [2d Dept 1986]), and identifying identify the provision(s) of the contract that were breached (Canzona v. Atanasio, 118 AD3d 837 [2nd Dept 2014]). Accordingly, the subcontractor agreements and the liens alone qualify as documentary evidence warranting dismissal of the cause of action for breach of contract by demonstrating that plaintiff was in privity with B.A.B. Mechanical, not the defendant in this action. Moreover, the complaint utterly fails to identify a specific contract, when it was entered into, and what specific provisions thereof were violated by the defendant. Although affidavits are not documentary evidence for the purposes of CPLR §3211 (a)(1), the affidavit of plaintiff’s president, Sharon Kern, filed in support of extending the mechanic’s liens is “essentially undeniable” evidence in support of those mechanic’s liens. Unlike the affidavit of Sal Rajput, Walison’s vice president of operations which is not considered by this Court upon this branch of defendant’s motion, Kern’s affidavit is an incidental admission that constitutes additional documentary evidence (Morgenthow & Latham v. The Bank of New York Company, Inc., 305 AD2d 74 [1st Dept 2003]; Philip S. Schwartzman, Inc., v. Pliskin, Rubano, Baum & Vitulli, 64 Misc3d 1206 [A] [Sup Ct Queens County 2019]). In that affidavit seeking continuation of the $22,877.50 lien, Sharon Kern avers that “Allure was hired by B.A.B. Mechanical Services Inc. to provide labor and materials to perform repairs and renovations at certain real property owned by 280 Burnside Housing Fund Corporation & 280 East Burnside Associates L.P. at the premises located at number 280 East Burnside Avenue, Bronx, New York.” The plaintiff cannot attempt to avoid the effect of this admission. CPLR §3211(a)(7) Basis for Dismissal When deciding a motion to dismiss pursuant to CPLR §3211(a)(7), the court must afford the complaint a liberal construction, accepting all facts as alleged in the complaint to be true, and according the plaintiffs the benefit of every favorable inference (see Marcantonio v. Picozzi III, 70 AD3d 655 [2d Dept 2010]). The sole criterion on a motion to dismiss is “whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cognizable action at law a motion for dismissal will fail” (Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]; see also Miglino v. Bally Total Fitness of Greater New York, Inc., 20 NY3d, 342, 351 [2013]; Leon v. Martinez, 84 NY2d 83, 87-88, [1994]; Sokol v. Leader, 74 AD3d 1180, 1180-1181 [2d Dept 2010]; Gershon v. Goldberg, 30 AD3d 372, 373 [2d Dept 2006]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). “A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211 (a)(7) [citation omitted]” (Sokol, supra at 1181). “ When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, 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 regarding it…dismissal should not eventuate” (Guggenheimer, supra at 275; see also Vertical Progression, Inc. v. Canyon Johnson Urban Funds, 126 AD3d 784 [2d Dept 2015]; YDRA, LLC v. Mitchell, 123 AD3d 1113 [2d Dept 2014]; Korsinsky v. Rose, 120 AD3d 1307 [2d Dept 2014]). “In sum, in instances in which a motion to dismiss made under CPLR 3211 (subd [a], par 7) is not converted to a summary judgment motion, affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint, although there may be instances in which a submission by plaintiff will conclusively establish that he has no cause of action. It seems after the amendment of 1973 affidavits submitted by the defendant will seldom if ever warrant the relief he seeks unless too the affidavits establish conclusively that plaintiff has no cause of action” (Rovello v. Orofino Realty Co., 40 NY2d 633, 636 [1976] [emphasis added]). The instant motion is being treated as it is noticed, as a motion for dismissal pursuant to CPLR §3211. The Court is not treating this motion as one for summary judgment pursuant to CPLR §3211(c). Plaintiff’s cause of action for account stated is dismissed for failure to state a cause of action. In order to state a claim for this cause of action, plaintiff must allege that there was an express or implied agreement between the parties, that plaintiff generated statements for the defendant in the regular course of business and provided those statements to the defendant for the time period for which the defendant is alleged to be in default, and that defendant accepted these accounts and retained them without objection for some length of time prior to the commencement of the action (see Episcopal Health Services, Inc. v. POM Recoveries, Inc., 138 Ad3d 917 [2d Dept 2016]; American Express Centurion Bank v. Williams, 24 AD3d 577 [2d Dept 20051). As noted by this Court in its consideration of defendant's argument concerning the breach of contract cause of action, there does not appear to be any agreement, express or implied, between plaintiff and defendant. Plaintiff does not even allege that it had an implied agreement with defendant, but alleges that an account was stated "as a result of the above agreement," which is the contract referred to in the first cause of action. Plaintiff's opposition to the instant motion does not contain any invoice addressed to the defendant in this action. Moreover, evidence of direct payments made to plaintiff by defendant contained in plaintiff's Exhibit C do not constitute a contract between plaintiff and defendant by the very terms of the subcontractor agreement, section 4.9. The affidavit of Sharon Kern establishing that plaintiff was in privity with B.A.B. Mechanical, which was submitted by defendant in support of the instant motion is not addressed in any respect by the affidavit of Ashley Brennan, plaintiff's bookkeeper, submitted in opposition. Also, the "proposals" referred to by Ms. Brennan and the change order do not establish the existence of any account stated or agreement between plaintiff and defendant. The documents in Exhibit A purporting to be the proposals do not name the parties to those documents, but only bear unintelligible initials. The purported change order in Exhibit B also fails to demonstrate a cause of action against defendant. It is not evident from its face to whom it was directed, other than to "Sabah." None of those documents substantiate, nor do Ms. Brennan's statements allege that plaintiff entered into an agreement with defendant Walison. Accordingly, plaintiff's cause of action for account stated is dismissed pursuant to CPLR §3211 (a)(7). Defendant's motion is granted in its entirety and the complaint is dismissed as provided herein. The foregoing constitutes the Decision and Order of this Court. FINAL DTSPOSITION IX] NON-FTNAL DTSPOSITION [ ] Dated: October 19, 2020
