ALM Unlimited v. Donald Trump
(NYS Supreme Court, NY County, 5/19/2010)
We represented: ALM Unlimited
Hon. Eileen Bransten, J.S.C.
DECISION and ORDER
Defendant Donald J. Trump moves to dismiss, with prejudice, the complaint by ALM Unlimited, Inc., as successor-in-interest to ALM International, Inc. ("ALM") pursuant to CPLR 3211 (a) (1), (a) (5) and (a) (7). Plaintiff opposes.1
BACKGROUND
A. The Operative Agreements
Plaintiff ALM brings this action to recover the fees it allegedly earned by assisting Defendant Trump in entering into a business relationship with Phillips-Van Heusen Corporation ("PVH") to license Trump's name upon a line of men's apparel.
ALM entered into a "Memorandum of Understanding" with Trump on September 25, 2003 (the "Agreement"). Therein, ALM and Trump evidenced their business relationship to license the production of high quality apparel bearing the "Trump" brand, on a worldwide basis (Agreement, p 1). Trump agreed, from the signing date of the Agreement to March 30, 2004 (the "Exclusive Period"), to "utilize ALM as his sole and exclusive licensing agent" to achieve that goal (id., ¶ 1).
The Agreement stated that should ALM secure for Trump a license agreement meeting certain criteria, an "Acceptable License," ALM would receive a 22.5% commission upon any license fees paid to Trump pursuant to that license (Agreement, ¶ 2, Schedule 1).
The parties further agreed that should an Acceptable License not be entered into during the Exclusive Period, absent extension of that period, Trump and ALM had no further obligations to each other. However, ALM was to receive a commission upon a license, with terms similar to an Acceptable License, entered into by Trump within three months after the Exclusive period for which significant negotiations were entered into during the Exclusive Period (the "Tail Period") (id., ¶ 3). Upon signing of such an agreement, ALM was granted the ability to receive quarterly reports for the calculation of its commissions, and ALM was provided the ability to inspect and audit Trump with respect to its commissions (id., ¶ 4). ALM and Trump entered into an Extension of Memorandum of Understanding and Amendment on January 13, 2004 (the "Extension Agreement"). Therein, the parties extended the Exclusive Period to end June 30, 2004. ALM and Trump also added a fifth paragraph to the original Agreement. Paragraph five provided that Trump was to provide ALM with "a letter of introduction/authorization to any potential licensee of an Acceptable License." Trump was also to provide ALM "with reasonable access to and copies of all information in Trump's possession relating to any prior opportunities presented to Trump or investigated by Trump to license the 'Trump' brand in the manufacture of high quality apparel." All other terms of the Agreement remained in full force and effect.
B. Phillips-Van Heusen Corporation
ALM contends that on or about May 14, 2004, it met with Phillips-Van Heusen ("PVH") Corporation, a clothing manufacturer, to negotiate a possible license deal between Trump and PVH for dress shirts and neckwear. ALM states that it arranged a meeting between Trump and PVH for June 24, 2004. It contends that, at that meeting, Trump and PVH discusses marketing goals and a potential licensing agreement. ALM argues that it assisted in negotiating the terms of a licensing agreement between Trump and PVH throughout the Exclusive Period ending June 30, 2004 and the Tail Period ending September 30, 2004.
Trump and PVH signed a licensing deal for the "Trump" brand on November 29, 2004 (the "PVH License"). ALM contends that, based on royalty reports and payments it received from Trump based thereon, the PVH License was renewed through December 31, 2009.
ALM states that on August 23, 2004, contemporaneous with its ongoing assistance with PVH, ALM and Trump entered into another agreement amending the terms of the original Agreement (the "Alleged Agreement"). ALM pleads that the parties modified the fee schedule and extended the Agreement with specific regard to PVH. ALM argues that the parties agreed that Trump would pay ALM 10% of all royalties or other fees paid to Trump by PVH in accordance with a PVH license of the "Trump" brand, even if the license did not meet the Acceptable License standard of the Agreement.
ALM argues that a modification of the Agreement was not required to be in writing, however, the modification was confirmed in various emails, invoices and payments. ALM presents a letter from its own Jeff Danzer to George Ross, of the Trump Organization, allegedly detailing the changes to the Agreement and the fee structure in particular; emails between ALM and Trump Organization representatives; sales and royalty reports from PVH to Trump, allegedly provided to ALM by Trump for ALM's billing purposes; invoices from ALM to the Trump Organization based on those invoices; and checks from and signed by Donald J. Trump to ALM allegedly in satisfaction of ALM' s submitted invoices for royalties due to it from the PVH license. ALM further contends that the Trump Organization's Cathy Glosser and George Ross represented to ALM that Trump agreed to ALM' s 10% commission fee on the PVH license.
ALM contends that Trump provided to it PVH royalty reports from the first quarter of 2005 through at least the fourth quarter of 2007. ALM argues that it submitted invoices to Trump based upon those royalty reports and that each invoice referenced the PVH-Trump license agreement, total sales thereunder, total royalties paid to Trump from PVH and total royalties due to ALM based upon the royalties Trump received. Trump allegedly personally signed checks in satisfaction of ALM' s invoices through 2007 to Trump, and those checks specifically noted the invoices that they satisfied.
ALM pleads that on or about June 30, 2007, Trump, through his representative George Ross, stated his intent to cease paying ALM the royalties allegedly due to it pursuant to the Agreement, the Extended Agreement and the PVH License. ALM contends that Ross stated that, while ALM may be entitled to "reasonable compensation" for its work with PVH, Trump did not intend to continue paying ALM royalties on the license indefinitely. Further, Ross allegedly stated that Trump was not in possession of any agreement to pay ALM a continuing 10% royalty. Ross then requested a writing confirming that agreement. Ross contended that any payments made had been made under a false understanding of an agreement between ALM and Trump. He is further alleged to have stated that "a judge would apply the theory of 'quantum meruit' and reduce the amount [ALM] received accordingly" (Hager Aff., Ex. 5).
Trump has made no payments to ALM since ALM's invoice for fourth quarter 2007.
Upon the above facts, ALM brings causes of action for: (1) breach of contract and anticipatory breach of contract; (2) quantum meruit; (3) unjust enrichment; (4) declaratory judgment; (5) breach of contract: violation of exclusive licensing agent agreement; and (6) breach of the covenant of good faith and fair dealing.
Trump moves to dismiss each of ALM's claims.
ANALYSIS
I. Standard of Law
On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Under CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law. In assessing a motion under CPLR 3211 (a) (7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one (Leon v Martinez, 84 NY2d 83,87-88 [1994] [internal quotations and citations omitted]; see also Goshen v Mutual Life Ins. Co. a/New York, 98 NY2d 314,326 [2002]; Prichard v 164 Ludlow Corp., 14 Misc.3d 1202[A], * 3 [Sup Ct, NY County 2006]). "It is well settled that bare legal conclusions and factual claims, which are either inherently incredible or flatly contradicted by documentary evidence … are not presumed to be true on a motion to dismiss for legal insufficiency (O'Donnell, Fox & Gartner v R-2000 Corp., 198 AD2d 154, 154 [1st Dept 1993]). The court is not required to accept factual allegations that are contradicted by documentary evidence or legal conclusions that are unsupported in the face of undisputed facts (Zanett Lombardier, Ltd. v Maslow, 29 AD3d495, 496 [1st Dept 2006] citing Robinson v Robinson, 303 AD2d 235,235 [1st Dept 2003]).
CPLR 3211 (a) (5) permits the court to dismiss an action which is barred by arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or disability of the moving party, payment, release, res judicata, statute of limitations or statute of frauds. Trump asserts that ALM' s first through fourth causes of action should be dismissed pursuant to CPLR § 3211 (a) (5) as barred by the statute of frauds.
II. Statute of Frauds
(Plaintiff's Causes of Action 1 – 4)
Defendant moves to dismiss ALM's first through fourth causes of action for breach of contract and anticipatory breach of contract, quantum meruit, unjust enrichment and declaratory judgment, respectively, as barred by the Statute of Frauds ("SOF"), General Obligations Law ("GOL") § 5-701 (a) (10).
New York GOL § 5-701 (a) (10) requires a writing subscribed by the party to be charged in instances in which the agreement is to pay compensation for services rendered in negotiating the purchase or sale of a business opportunity. "'Negotiating' includes procuring an introduction to a party to the transaction or assisting in the negotiation or consummation of the transaction" (General Obligations Law § 5-701 [a] [10]). This section of the Statute of Frauds applies to finders fee agreements such as the alleged contract at bar (Snyder v Bran/man, 13 NY3d 504, 509-lO [2009] quoting Freedman v Chemical Canstr. Corp., 43 N.Y.2d 260,267 [1977]). /
A. First Cause of Action for Breach of Contract and Anticipatory
Breach of Contract and Fourth Cause of Action for Declaratory Judgment Defendant focuses its motion to dismiss Plaintiff s first cause of action for breach of contract and anticipatory breach of contract and fourth cause of action for declaratory judgment upon the Alleged Agreement. ALM claims that, through the Alleged Agreement, Trump agreed to pay ALM 10% of the commission fees Trump received from PVH. Trump contends that the alleged agreement was never reduced to writing and is therefore barred by the Statute of Frauds. Trump contends that the history of GOL § 5-701 (a) (10) illustrates that this section of the SOF was enacted to prevent exactly these types of disputes. Defendant argues that, as admitted by ALM in its complaint, neither Trump nor any authorized Trump agent signed the Alleged Amendment (Memorandum of Law in Support of Defendant's Motion to Dismiss Amended Complaint ["Defendant's Memo"] at 10).
Defendant further argues that ALM's claim that the Alleged Agreement was ratified by partial performance is inapplicable under New York law and GOL § 5-701 (a) (10).
In response, Plaintiff ALM argues that the Alleged Agreement satisfies the Statute of Frauds through a proper combination of multiple writings. ALM contends that the Alleged Agreement is "evidenced, confirmed, and memorialized" by emails between the parties evidencing the terms of the fee modification for the PVH deal; PVH Sales and Royalty Quarterly Reports sent to ALM by Trump to allow ALM to calculate its 10% commission on royalties paid by PVH to Trump; ALM invoices to Trump demanding, on their face, payment for 10% of the royalties received by Trump from PVH; and eleven checks from the Trump Organization to ALM, signed by Donald Trump, that each reference the respective ALM (Plaintiffs Memo at 29-31). Plaintiff contends that these writings evidence all material terms of the Alleged Agreement, including compensation.
ALM does not contest Trump's argument that the partial performance exception to the statute of frauds is here inapplicable. ALM instead contends that the above combination of signed and unsigned documents satisfies the statute of frauds. ALM further contends that Trump is barred from invoking the SOF defense due to equitable estoppel and waiver.
(i) Statute of Frauds
In order to satisfy GOL § 5-701 (a) (10), a memorandum "must contain expressly or by reasonable implication all the material terms of the agreement, including the rate of compensation if there has been agreement on that matter" (Davis & Mamber, Ltd. v Adrienne Vittadini, Inc., 212 AD2d 424,424 [Ist Dept 1995] [citation omitted]). The memorandum may consist of separate writings that, when read together, clearly refer to the same transaction (see Crabtree v Elizabeth Arden Sales Co., 305 NY 48,54 [1953]). "[A]t least one writing, the one establishing a contractual relationship between the parties, must bear the signature of the party to be charged, while the unsigned document must on its face refer to the same transaction as that set forth in the one that was signed" (id. at 56).
Neither party contests that the Agreement and the Extension Agreement were fully subscribed. The Agreement and the Operative Agreement contained all material terms, including the rate of compensation. Thus, providing all references to the non-moving party on this motion to dismiss, these agreements establish a contractual relationship between the parties for ALM to attempt to provide a licensee for apparel featuring the "Trump" name (American Linen Supply Co., Inc. v Penn Yan Marine MIg. Corp., 172 AD2d 1007, 1008 [4th Dept 1991]).
The Alleged Agreement, pertaining to fees for the PVH transaction, purports to extend the Agreement and the Extended Agreement with respect to PVH and ALM's payment for assistance with the PVH deal. ALM does not contest that the Alleged Agreement was not signed by Trump, nor does Plaintiff contend that the Alleged Agreement consists of the entire agreement between the parties. Rather, Plaintiff pleads that the Alleged Agreement modified the Agreement and the Extension Agreement and that Defendant acknowledged and acquiesced in that amendment for two years.
ALM has put forth sufficient evidence to plead its claims for breach of contract and declaratory judgment. First, ALM has put forth emails referencing the alleged agreement regarding the parties and PVH, albeit mainly from ALM itself. While these emails are not dispositive, they need not be so upon a motion to dismiss.
Second, ALM has put forward PVH royalty reports, allegedly provided by Trump to ALM, which show royalties Trump received from PVH. ALM alleges that it used this royalty reports to calculate its fee to Trump for the PVH deal, which was an ongoing 10% of the royalties PVH paid to Trump through the license agreement.
Third, ALM has provided invoices that it submitted to Trump based upon PVH's royalty reports. The invoices note on their face the total sales by PVH of Trump-licensed products, the royalties received by Trump from PVH for those sales and a charge by ALM to Trump for 10% of those royalties received.
Fourth, ALM has also submitted eleven checks, signed by Donald Trump, that note the invoice number for which each check is in satisfaction. For purposes of a motion to dismiss, the various documents reference the transaction in question, the basis of which was formed in the Agreement and the Extended Agreement and purportedly further extended in the Alleged Agreement, the pleading of which is accepted as true (Intercontinental Planning, Ltd. v Daystrom, Inc., (24 NY2d 372, 379 [1969]; American Linen Supply Co., Inc., 172 AD2d at 1008). Plaintiff has therefore at this time satisfied the statute of frauds.
ALM further contends that Trump Organization representative George Ross admitted in a July 30,2008, email that Trump's Cathy Glosser had agreed to the Alleged Agreement and had authorized payments to ALM based thereon. The court notes that in the email in question, Ross actually states that "[a ]ny dealings after August 25th [2004] were with Cathy Glosser who Jeff [Danzer, of ALM] led to believe that I had agreed to the 10% and she authorized payments based on that erroneous assumption" (Hager Aff., Ex. 5). Thus, without holding more, the court finds that the July 20, 2008, Ross email is not an admission to the validity of the Alleged Agreement.
The cases upon which Defendant primarily relies in support of its motion to dismiss may here be distinguished. In Walker v Knowles, (15 Misc 3d 1124[A] [Sup Ct, NY County 2007]), two contracts were at issue, yet there was "no fully executed writing evidencing either of the contracts" (id. at *3). In contrast, ALM and Trump entered into a contract, extended that contract and then allegedly modified that contract. No clear evidence provides otherwise, and, instead, Plaintiff has proffered sufficient evidence to support a pleading that the contract was modified and possibly breached.
In Intercontinental Planning, Ltd. v Daystrom, Inc., (24 NY2d 372 [1969]), plaintiff brought suit based upon a signed written agreement. However, the written agreement was held to be transaction specific, referring "to the acquisition of 'Rochar Electronique' by 'Daystrom, Incorporated' – and not to the later purchase of Daystrom by defendant Schlumberger" – which was the issue at bar (id. at 379). The court thus found that the extrinsic writings relied upon by the plaintiff, "none of which independently satisf[ied] the Statute of Frauds," could not be used "to create an ambiguity in the unambiguous and complete written agreement" (id.). In this matter, the written agreement between ALM and Trump was not transaction specific, but was task-oriented. Plaintiff has put forth evidence alleging that it continued working on the PVH deal pursuant to the Alleged Agreement, and that Defendant knew of and also operated under that same agreement.
For the above reasons, providing all inferences to the non-moving party, (Leon, 84 NY2d at 87-88), the court finds that ALM has sufficiently pleaded its first and fourth causes of action to survive a motion to dismiss. Defendant's motion to dismiss those causes of action is denied.
(ii) Equitable Estoppel and Waiver
Because the court denies Defendant's motion to dismiss Plaintiff's first and fourth causes of action on the grounds above, the court need not here discuss Plaintiff's arguments regarding equitable estoppel and waiver.
Defendant additionally alleges that the Alleged Amendment violates the Extension Agreement's integration clause, which reads "[ t ]he foregoing, when executed by the parties, reflects the parties' entire understanding with respect to the subject matter hereof…" (Plaintiff's Memo at 13-14, citing Complaint, Ex. 2, Extension Agreement).
Plaintiff counters that the Extension Agreement does not require that any amendments to that agreement be in writing (Plaintiff's Memo at 39).
While Defendant's argument is compelling, it is unavailing. The Alleged Agreement is more than an oral modification of the existing agreements (Daiichi Seihan USA v Infinity USA, Inc., 214 AD2d 487,488 [1st Dept 1995]). The Alleged Agreement is purported to be an additional agreement, agreed to by the parties and specific to the PVH transaction. While the Agreement and the Extension Agreement provide the basis of the parties' relationship, ALM seeks to enforce the terms of the Alleged Agreement with regard to the PVH transaction. Thus, upon this motion to dismiss, Plaintiff's first and fourth causes of action survive.
B. Second Cause of Action for Quantum Meruit
Defendant argues that Plaintiff's claim for quantum meruit must fail because the underlying Alleged Agreement must fall under the Statute of Frauds, GOL § 5-701 (a) (10). Defendant cites to numerous cases that reject claims for quantum meruit where an underlying contract was deemed void. Plaintiff counters.
Plaintiff is correct that Morris Cohon & Co. v Russell, (23 NY2d 569 [1969]) limited Minichiello v Royal Business Funds Corp., (18 NY2d 521 [1966]) to "situations in which there is a complete absence of any memorandum" (Morris Cohon & Co., 23 NY2d at 572). Minichiello is therefore here inapplicable because, as stated above, for the purposes of this motion to dismiss sufficient documentation exists to remove Plaintiff s claim regarding the Alleged Agreement from the Statute of Frauds. Defendant's remaining cases in support of its argument are thus similarly distinguished.
Upon further motion practice or trial, should the Alleged Agreement be found unenforceable due to the Statute of Frauds, Plaintiff may still recover the reasonable value of services rendered (Moors v Hall, 143 AD2d 336,337 [2d Dept 1988] citing Silberberg v Haber, 42 AD2d 552,552 [1st Dept 1973]). At this time, the court finds that Plaintiff has sufficiently pleaded claims of both a breach of contract and for quantum meruit to survive a motion to dismiss. Plaintiff is not required to elect between the two causes of action (see Katcher v Browne, 19 AD2d 744, 744 [2d Dept 1963]). Defendant's motion to dismiss Plaintiffs second cause of action for quantum meruit is denied.
C. Third Cause of Action for Unjust Enrichment
Defendant further argues that Plaintiffs claim for unjust enrichment is precluded by the existence of the original Agreement. Defendant alleges the Agreement governs the subject matter of the matter at issue in this litigation.
Though the Agreement does govern part of the subject matter at issue, it is the Alleged Agreement, a contended additional component of the Agreement, that ALM purports specifically covers the PVH transaction. However, as stated in section B (I), supra, for purposes of this motion to dismiss Plaintiff has sufficiently pleaded its claim for breach of contract so as to remove the Alleged Agreement from the Statute of Frauds. Plaintiff s claim for unjust enrichment is therefore barred, upon the grounds that Plaintiff has pleaded a valid contract governing the subject matter of its claims (see EBC L Inc. v Goldman Sachs & Co., 5 NY3d 11, 23 [2005] [dismissing claim for unjust enrichment upon finding a contract governing the same subject matter).
III. "Acceptable License" Under the Licensing Agreement
Defendant moves, in the alternative, to dismiss ALM's complaint for failure of the PVH License to constitute an "Acceptable License" under the Agreement.
Defendant first argues that, under Section 3 of the Agreement, ALM was only entitled to receive its fee should Trump have entered into an agreement to license the "Trump" name within the Exclusive Period or the Tail Period. Defendant contends that Trump did not do so, as admitted in paragraph 18 of the Complaint. Second, Defendant argues that the PVH License did not meet the "Acceptable License" standard as defined in the Section 2 of the Agreement, and therefore ALM was not entitled to any fees therefor. ALM counters that the parties agreed in the Alleged Agreement that Trump would pay ALM 10% of royalties Trump received from PVH. ALM states that Trump agreed to pay ALM this fee even if the PVH License did not meet the terms of an Acceptable License under the Agreement (Complaint, ¶ 14; Hager Aff., ¶¶ 14-15). ALM contends that the eleven checks sent by Trump to ALM reflect the amended 10% commission rate for the PVH License deal, and that the checks demonstrate defendant's intent to forego the original Agreement's Acceptable License requirements.
Plaintiff is correct that New York law does not recognize a partial performance exception to agreements governed by General Obligations Law § 5-703 (Stephen Pevner, Inc. v. Ensler, 309 A.D.2d 722, 722 [1st Dept 2003]). However, as stated above, Plaintiffs have sufficiently pleaded the Alleged Agreement to show that the parties may have amended the Agreement, and have put forth sufficient pleadings evidencing those amendments. Defendant's argument to dismiss the complaint on this ground is denied.
IV. Failure to State a Claim
(Plaintiff's Causes of Action 5, 6)
Finally, Defendant moves to dismiss, for failure to state a claim, ALM's fifth and sixth causes of action for violation of the Agreement and breach of the covenant of good faith and fair dealing inherent in the Agreement.
Plaintiff alleges, in its fifth and sixth causes of action, that Trump violated the Agreement and the Extended Agreement by procuring, without ALM's knowledge or assistance, a license agreement with a company named Marcraft for a line of apparel bearing the "Trump" name (the "Marcraft License").
Plaintiff alleges that Trump was precluded by section 1 of the Agreement from entering into the Marcraft License without ALM's assistance or with the assistance of another licensing agent or broker. Section 1 of the Agreement stated that "Trump shall utilize ALM as his sole and exclusive licensing agent" for procuring a license for apparel bearing the "Trump" name.
Plaintiff further alleges that Trump violated Section 5 of the Extended Agreement by entering into the Marcraft License. Section 5 of the Extended Agreement mandated that Trump was to provide ALM with letters of introduction to potential licensees for "Trump"- labeled apparel and that Trump was to identify to ALM all potential licensees. ALM contends that it made demands of Trump for potential licensees, and that Trump did not provide the Marcraft contact.
Trump argues that Plaintiff confuses "exclusive agency" with "exclusive right to sell," and that nothing prevented Trump from independently negotiating and entering into a license agreement without ALM's assistance.
(i) Plaintiffs Fifth Cause of Action for Breach of Contract
A broker is entitled to a commission upon the sale of the property by the owner only where the broker has been given the exclusive right to sell; an exclusive agency merely precludes the owner from retaining another broker in the making of the sale . . . A contract will not be construed to create an exclusive right to sell unless it expressly and unambiguously provides for a commission upon sale by the owner or excludes the owner from independently negotiating a sale (Far Realty Assocs. Inc. v RKO Delaware Corp., 34 AD3d 261, 262 [1st Dept 2006] [citations omitted]).
The Agreement and the Extended Agreement define ALM's duties "to explore the opportunities for licensing the production of high quality apparel … utilizing the 'Trump' brand on a world-wide basis (the "Project") (Agreement, pi). The Agreement then provided that "Trump shall utilize ALM as his sole and exclusive licensing agent for the Project" (Agreement, ¶ 1).
Plaintiff has not pleaded that the Agreement or the Extended Agreement provides to ALM a commission for Trump's own actions in licensing the "Trump" name for mens apparel or that either agreement precludes Trump from independently negotiating such a license. Further, Plaintiff has not pleaded that paragraph 5 of the Extended Agreement is a "referral clause" as contemplated in Audrey Balog Realty Corp. v East Coast Real Estate Devs. (202 AD2d 529 [2d Dept 2009]). Plaintiff has therefore not pleaded that the Agreement and the Extended Agreement provided it an exclusive right to sell (Far Realty Assocs. Inc., 34 AD3d at 262).
Plaintiff has, however, sufficiently pleaded that, during the Exclusive Period, ALM made demand of Trump for information in Trump's possession regarding potential licensees, that Trump did not provide any such information and that Trump, either acting by himself or with broker Bo Deitel, procured the Marcraft License during the Exclusive Period. 3. If proven, either Trump's refusal to provide the requested information or the involvement of another broker working on the Project, as defined in the Agreement, may consist of a breach of contract. Accepting the facts as pleaded in the complaint as true, and also considering the affidavits submitted by the plaintiff, as the court must upon this motion to dismiss, Plaintiff has sufficiently pleaded its fifth cause of action to survive a motion to dismiss (Leon, 84 NY2d at 87-88). Defendant's motion to dismiss plaintiff's fifth cause of action for breach of contract is denied.
(ii) Plaintiff's Sixth Cause of Action for Breach of the Covenant of Good Faith and Fair Dealing
Despite Plaintiff's attempt to vary the facts in its sixth cause of action, Plaintiff's claim for breach of the implied covenant of good faith and fair dealing arises out of the same facts and seeks the identical damages as its fifth cause of action for breach of contract. Plaintiff's sixth cause of action is therefore dismissed as duplicative of its breach of contract claim (Amcan Holdings, Inc. v Canadian Imperial Bank a/Commerce, 70 AD3d 423,426 [1 st Dept 2010]).
Accordingly, it is
ORDERED that Defendant Donald 1. Trump's motion to dismiss is granted to the extent that Plaintiff ALM Unlimited Inc.' s third and sixth cause of action are dismissed, and it is further
ORDERED that Defendant Donald 1. Trump's motion to dismiss is otherwise denied, and it is further
ORDERED that the defendant shall serve and file an answer to the amended complaint within twenty days of service of a copy of this order with notice of entry.
This constitutes the decision and order of the court.
Dated: New York, New York
May 19, 2010
ENTER:
Hon. Eileen Bransten, J.S.C.
FOOTNOTES
1Plaintiff opposes with an Affirmation of Jay B. Itkowitz, Esq. ("Itkowitz Aff."), Affidavit of Mark Hager, President of ALM ("Hager Aff.") and a fifty-six page Plaintiffs Memorandum of Law in Opposition to Defendant's Motion to Dismiss ("Plaintiff's Memo"). The court notes an absence of permission extending the page limitations of Plaintiff's memorandum, and states that Plaintiff would do well to follow Rule 17 of the Rules of the Commercial Division of the Supreme Court. After consideration, the Court will not this time strike the portion of Plaintiff s Memo extending past twenty-five pages. Plaintiff is warned against flaunting the Court's rules in the future.
2Facts are taken from the Amended Complaint and the Hager Affidavit.
3The court is aware of the affidavits submitted by the Defendant in this motion. However, upon a motion to dismiss, the question is whether Plaintiff has "pleaded" a cause of action, not whether Plaintiff has "proven" its claim.