DECISION & ORDER Upon the papers filed in support of the application and the papers filed in opposition thereto, and after hearing oral arguments, it is hereby ORDERED that the Causes of Action for Breach of Contract and Unjust Enrichment are hereby dismissed. ORDERED that a hearing on the Cause of Action for Promissory Estoppel will be held, pursuant to CPLR 3211(c). Procedural History Plaintiff John Ward commenced this action by Summons and Complaint on September 29, 2020 alleging causes of action for Breach of Contract, Unjust Enrichment and Promissory Estoppel. The Plaintiff John Ward is the estranged stepfather to Defendant Michael Wittich. Plaintiff Ward was married to Wittich’s late mother, Roxanne Ward. This Action arises out of a joint bank account held by Roxanne Ward and Michael Wittich, created during John Ward and Roxanne Ward’s marriage. The bank account (hereinafter the “Joint Account”) originally contained approximately $150,000. It was reduced to approximately $110,000 after Defendant Wittich gave money to Ward for Roxanne Ward’s funeral costs, medical bills, and other miscellaneous expenses. In 2017, Plaintiff Ward began demanding the remainder of the bank account. The parties have a history of litigation in Richmond County Family Court, Richmond County Supreme Court, and New York County Supreme Court. The parties first had litigation in Richmond County Family Court, where Defendant Michael Wittich sought an order of protection against Plaintiff John Ward. That action was dismissed in November 2019. In December 2019, Plaintiff Ward filed an action against Defendant Wittich, under Index No. 152712/2019, with causes of action for intentional infliction of emotional distress, defamation, and punitive damages. While that action was pending, Wittich filed an action against Ward, in New York County Supreme Court under Index No. 162281/2019, with a cause of action for Intentional Infliction of Emotional Distress. Ward subsequently withdrew the Richmond County action, without prejudice, and then filed counterclaims in the New York County Action. Both parties filed Motions to Dismiss. Justice Shlomo S. Hagler dismissed Wittich’s complaint with prejudice and partially dismissed Ward’s counterclaims with prejudice. Ward’s causes of action for Breach of Contract, Unjust Enrichment, and Promissory Estoppel were dismissed without prejudice. Defendants’ Motion to Dismiss The instant motion to dismiss pursuant to CPLR 3211(a)(7) was filed on December 1, 2020. Defendant Wittich claims that Plaintiff Ward has no legal claim to the joint bank account owned by Roxanne Ward and Defendant Wittich. Further, Defendant Wittich claims that Plaintiff Ward failed to fulfill the necessary elements of his causes of action for breach of contract, unjust enrichment, and promissory estoppel. Plaintiff’s Opposition to the Motion to Dismiss Plaintiff argues in opposition that the Defendant Wittich made numerous promises to turn the Joint Account over to Ward. Plaintiff further argues that all of the elements of the causes of action for breach of contract, unjust enrichment, and promissory estoppel have been met. Discussion Under CPLR 3211, a cause of action may be dismissed on the ground that “a defense is founded upon documentary evidence” [3211(a)(1)] or where the “pleading fails to state a cause of action.” [3211(a)(7)]. On a motion to dismiss pursuant to CPLR 3211, the court will “accept the facts as alleged in the complaint as true, accord the 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]. Allegations consisting of “bare bones legal conclusions, as well as factual claims flatly contradicted by documentary evidence are not entitled to such consideration.” See Simkin v. Blank, 19 NY3d 46, 52 [2012]. Plaintiff’s Claim for Unjust Enrichment The Plaintiff claims that the Defendant was unjustly enriched by the Joint Account. The elements for unjust enrichment are “(1) the defendant was enriched, (2) at the plaintiff’s expense, and (3) it is against equity and good conscience to permit the defendant to retain what is sought to be recovered.” See GFRE, Inc. v. US Bank NA, 130 AD3d 569, 570 [2d Dept. 2015]. The theory of unjust enrichment is a “quasi-contract” claim and the Court of Appeals has held, “A plaintiff need not be in privity with the defendant to state a claim for unjust enrichment, there must exist a relationship or connection between the parties that is not too attenuated.” See Georgia Malone v. Rieder, 19 NY3d 511 [2012]. Plaintiff Ward concedes that he is not an owner or signatory of the Joint Account. Plaintiff Ward’s claim to the account rises out of the original deposit funds which came from a joint account that he had with Roxanne Ward. Plaintiff Ward maintains the funds in the Joint Account are his. Based upon the documentary evidence submitted, Defendant Wittich is the sole owner of the Joint Account, by reason of right of survivorship. Therefore, there can be no unjust enrichment as a matter of law. Accordingly, Plaintiff Ward’s Cause of Action for Unjust Enrichment is dismissed with prejudice based upon the failure to state a cause of action. Plaintiff’s Claims for Breach of Contract The basic elements for a breach of contract cause of action are: (1) the existence of a contract, which includes an offer, acceptance, and adequate consideration, (2) plaintiff’s performance, (3) defendants’ breach, and (4) damages resulting from the breach. See Dee v. Rakower, 112 AD3d 204, 208-209 [2d Dept. 2013]. A party contending that a contract exists “must accordingly allege in nonconclusory language…the essential terms of the parties’…contract, including those specific provisions of the contract upon which liability is predicated, whether the alleged agreement was, in fact, written or oral, and the rate of compensation.” Lapine v. Seinfeld, 31 Misc. 3d 736, 741 [Sup. Ct. New York Co. 2011]. In addition, to create a binding contract, there must be a “meeting of the minds, such that there is a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms.” Stonehill Capital Mgt. LLC v. Bank of the W., 28 NY3d 439, 448 (2016). Further, as a necessary element of any enforceable contract, consideration can consist of either a benefit to the promisor or a detriment to the promise.” Halliwell v. Gordan, 61 AD3d 932, 933[ 2d Dept. 2009]. Plaintiff Ward alleges that by promising and providing Roxanne Ward’s death certificate to Defendant Wittich, Ward performed on the parties’ agreement and Defendant breached by refusing to pay the remainder of the Joint Account. The Plaintiff also alleges breach as he prepared and executed a will naming the Defendant as a beneficiary and again the Defendant did not transfer the remainder of the Joint Account to the Plaintiff. Despite all of the email exchanges, the Court doesn’t find any meeting of the minds of the parties, so as to constitute a contract. Further, the Court doesn’t find sufficient consideration so to find a valid contract. Accordingly, Plaintiff Ward’s Causes of Action for Breach of Contract is dismissed with prejudice based upon the failure to state a cause of action. Plaintiff’s Claims for Promissory Estoppel The element for a claim for promissory estoppel are (1) a promise that is sufficiently clear and unambiguous; (2) reasonable reliance on the promise by a party; (3) injury caused by the reliance. Matlin Patterson ATA Holdings LLC v. Federal Express Corp., 87 AD3d 836 [1st Dept. 2011]. Based upon the exhibits submitted by both parties, on numerous occasions, Defendant Wittich clearly and unambiguously promised to the Plaintiff Ward that he would give him the funds maintained in the Joint Account. Plaintiff Ward clearly pled that he relied on the promises made by the Defendant Wittich as Ward sought to make an investment in a rental property. In fact, Wittich acknowledged this when he stated, “I’m happy to send you the funds so you can make your investment.” Accepting the claims made by Plaintiff Ward in his Complaint, Ward sufficiently pled a cause of action for promissory estoppel. Though Defendant Wittich claims that Ward’s failure to invest in the rental property was not a result of his refusal to give Ward the funds, injury is a question of fact that will be determined by the Court after a hearing. Accordingly, Defendant Wittich’s Motion to Dismiss Ward’s cause of action for promissory estoppel is hereby denied. CONCLUSION Accordingly, it is hereby ORDERED that Defendant’s Motion to Dismiss the causes of action for breach of contract and unjust enrichment is hereby granted. ORDERED that the causes of action for breach of contract and unjust enrichment are dismissed, with prejudice. ORDERED that Defendant’s Motion to Dismiss the causes of action for promissory estoppel is hereby denied. ORDERED that the parties will proceed to a hearing pursuant to CPLR 3211(c) on the issue of injury. This constitutes the Decision and Order of the Court. Date: March 22, 2021
