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CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF NEW YORK

------------------------ -------- - - - ------------------- - - ----)(


COCA-COLA REFRESHMENTS USA, INC.
f/k/a COCA-COLA ENTERPRISES, INC.,

AFFIRMATION
IN OPPOSITION

Plaintiff,
-against-

Index No. 022542/14

BULL & BUDDHA, LLC d/b/a BULL


and BUDDHA and MONICA FRYDMAN,
Defendants.

----------------------------------------------------------------------------)(
ROBERT N. COHEN, an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms under penalties of perjury, as follows:
1. I am a member of the law firm of WEINSTEIN, KAPLAN & COHEN, P.C., attorneys
for the plaintiff herein, am fully familiar with all of the facts and circumstances in
this matter and submit this Affirmation in Opposition to defendants' Motion to
Dismiss pursuant to CPLR 321 l(a)(l), 321l(a)(7) and 321 l(a)(lO).
STATEMENT OF FACTS
2. The above entitled action was brought to recover monies due and owing for goods sold and
delivered pursuant to a Credit Application and based upon an account stated.
3.

The parties entered into a Credit Agreement on May 28, 2010 which provided that the
plaintiff would deliver Coca-Cola products to defendant-BULL & BUDDHA, LLC
d/b/a BULL and BUDDHA (hereafter "BULL") on credit and

defendant-BULL would remit payment for those products on the fifteen day of the
following month (prox 15 terms). This Agreement was personally guaranteed by the
individual defendant, MONICA FRYDMAN (hereinafter "FRYDMAN") who personally
guaranteed the corporation's obligations thereunder. (Annexed hereto and made apart
hereof and marked Exhibit "1" is a copy of said Credit Agreement)
4.

The Credit Agreement provides that should defendants default under the Agreement,
defendants agreed to pay plaintiff s reasonable attorneys' fees incurred in pursuant of
the collection of any money due under the Credit Agreement. ( See Exhibit 1, paragraph
5)

5. The Credit Agreement further provides that the personal guaranty is a continuing guaranty
unless the plaintiff receives a certified notification of termination within a minimum
of seven days of said termination. ( See Exhibit 1, Guaranty Clause)
6. Plaintiff and defendants performed under the Agreement until January 15, 2013, when the
December 12, 2012 invoice became due and defendants failed to pay the same.
Defendants further failed to pay every invoice thereafter through May 15, 2013.
(Annexed hereto and made a part hereof and marked Exhibit "2" is a copy of the
Accounts Receivable Spreadsheet and outstanding invoices)
7. Plaintiff attempted to cure defendants' default herein by contacting them via telephone at the
number that they listed on their Credit Application ( see Exhibit J) on April 10, 2013,
April 18, 2013, April 23, 2013, April 30, 2013, May 3, 2013, May 7,

2013, May 8, 2013, and May 10, 2013 but defendants refused to pay. (Annexed hereto
and made part hereof and marked as Exhibit "3" is a copy of the Customer Activity Log)
8. In addition to these calls and voice mail messages, plaintiff sent e-mails to the defendants to
the e-mail address they listed on the Credit Application on April 30, 2013, May 3, 2013
and May 15, 2013 but defendants refused to pay. (See Exhibit 3)
9. At no time did defendant-BULL notify the plaintiff that it wished to terminate the Credit
Application. Similarly, to date plaintiff has not received the required certified written
notice from defendant-f RYDMAN indicating her intention to terminate the continuing
guaranty that she executed herein. (See Exhibit 1)
10. After said attempts to cure defendants' delinquency without resort to litigation proved
fruitless, this matter was referred to the undersigned and demand letters were sent to
defendants on or about September 24, 2013. (Annexed hereto and made part hereof
and marked Exhibit "4" are a copies of said Demand Letters)
11. On or about September 30, 2013, Daniel C. Edelman, Esq., contacted the plaintiff s
attorneys' via e-mail to allege that it was defendants' subtenant that owed the
outstanding invoices and requested supporting documentation with regards to plaintiff s.,. _ _
claims. (Annexed hereto and made part hereof and marked as Exhibit "5" is a copy of said
e-mail request)
12. Immediately in response thereto, plaintiff forwarded defendants' attorney the requested
documentation and a breakdown of the damages sought and further advised

that his clients had never terminated the Credit Agreement, and specifically his client,
defendant-FRYDMAN had never sent the required certified written notice terminating the
personal guaranty. (Annexed hereto and made apart hereof and marked Exhibit "6" is a
copy of said correspondence)
13. Having received no response thereto, plaintiff sent a second and final demand letter to
defendants ' attorney on or about October 31, 2013 which likewise went ignored.
(Annexed hereto and made part hereof and marked as Exhibit "7" is a copy of the
second demand letter)
PROCEDURAL HISTORY
14. Having received no response whatsoever to it's second and final demand, plaintiff
commenced this action on August 28, 2014 by the filing of a Summons and Complaint
that was subsequently served upon defendant-FRYDMAN at defendant FRYDMAN's
current residence located at 46 Ledgerock Lane, Hyde Park, New York 12538. (Annexed
hereto and made part hereof and marked as Exhibit "8 is a copy of the Summons and
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Complaint with proof of service)


15. In lieu of filing an answer herein, defendants served the instant Motion to Dismiss upon
plaintiff s attorneys on December 10, 2014.

ARGUMENTS
I.

16.

DEFENDANTS' MOTION TO DISMISS SHOULD BE


DENIED IN ITS ENTIRETY BECAUSE PLAINTIFF HAS
CLEARLY DEMONSTRATED A CAUSE OF ACTION
UPON WHICH RELIEF MAY BE GRANTED

A motion to dismiss a Complaint pursuant to CPLR 321l(a)(7) should not

be granted where, assuming all the facts in the Complaint are true, the plaintiff's
Complaint states a cause of action -upon which relief may be granted. See CPLR
321 l (a)(7); Leon v. Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972 (1994) ("the criterion
is whether the proponent of the pleadings has a cause of action, not whether he has
stated one.");Rovello v. Orofino Realty Co., 40 N.Y.2d 633; 389 N.Y.S.2d 314 (1976) (
A "complaint should not he dismissed on a pleading motion so long as, when the
plaintiff is given the benefit of every possible inference, a cause of action exists");
Stukuls v.
State, 42 N.Y.2d 272, 275, 397 N.Y.S.2d 740 (1977); Henbest & Morrisey, Inc. v. W.H.
Ins. Agency, Inc., et. al., 259 App.Div.2d 829, 686 N.Y. S.2d 207 (3d Dept. 1999) (Held:
Court must accept the allegations in complaint as true and ignore the affidavits
submitted by defendants); see

' Matter of FYM Clinical Lab. v. Perales, 147

App.Div.2d 840, 537 N.Y.S.2d 998, aff'd_.74 N.Y.2d 539, 549 N.Y.S.2d 933 (1989).
17. Indeed, the Second Department has held that the test to be applied is whether the complaint
gives sufficient notice of the transaction, occurrence or series of transaction or
occurrences intended to be proved and whether the requisite elements of any cause of
action known to our law can be discerned from its averments. JP Morgan
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Chase v . J.H . Elec. of New York, Inc., 893 N.Y.S.2d 237, 239, 69 A.D.3d. 802, 803
(2010)
18. Thus, a motion to dismiss must be denied if, from the pleading's four comers, "factual
allegations are discerned which taken together manifest any cause of action
cognizable at law." 511 West 232nd Owners Corp v . Jennifer Realty Co., 98 N.Y.2d .
144, 15115, 746 N.Y.S.2d 131 (2002), citing Polonetsky v. Better Homes Depot,
97 N.Y.2d 46, 54, 735 N .Y.S.2d 479 (2001) (internal citation omitted).
19. Furthermore, the Court of Appeals has ruled that a complaint must be liberally construed
and that a consideration of the mere adequacy of the contract cause of action, not its
merits, is the applicable standard when determining whether a cause of action for breach
of contract is sufficient to survive a motion to dismiss. 511 West 232nd Owners Corp,
supra at 151-152.
20. As such, where none of the causes of action alleged in a complaint are facially
deficient, a defendant's motion to dismiss must be denied. Henbest & Morrisey. Inc.,
supra.
21. Plaintiff s complaint clearly states a cause of action for both breach of contract and for
account stated. As defense counsel notes, to state a claim for breach of contract the
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, supra.

22. Plaintiff s complaint states, and defense counsel even quotes in his moving papers:
"As and for a first cause of action, for goods sold and delivered and
services rendered by plaintiff to defendant, at defendant's special
instance and request at an agreed upon price, no part of which has been
paid, although duly demanded, thereby cause damages to plaintiff in the
sum of
$2,484.42, with interest accruing from January 15, 2013." (See Exhibit 8)
23. Therefore plaintiff adequately pied (i) the existence of a contract, specifically plaintiff
and defendants Agreement to sell and deliver goods; (ii) plaintiff performance under
said contract, specifically the delivery of said goods; (iii) defendats breach of the
contract; specifically failure to pay for the delivered goods and (iv)
-plaintiff s damages as a result thereof, specifically the amount due for unpaid invoices.
(See Exhibit 8)
24. Thus it is clear that within the four comers of the complaint the plaintiff clearly states a
cause of action for breach of contract.
25. Similarly plaintiff adequately pleaded a claim for account stated when it alleged in its
complaint that it duly demanded payment for the goods sold and delivered by the
plaintiff to the defendant. Citibank (South Dakota), N.A. v. Brown-Serulovic, 948
N.Y.S.2d 331, 97 A.D.3d 522 (2012) (See Exhibit 8)
26. Thus, looking only at the four corners of the complaint, plaintiff has clearly and adequately
plead the elements for each of its causes of action.
A.

Defendants' Motion to Dismiss should be denied because


defendants failed to resolve all factual issues as a matter of
law
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sufficient to conclusive y dispose of plaintiff's claim


27. Where a party files a motion to dismiss based upon documentary evidence, said evidence
"...must be such that it resolves all factual issues as a matter of law, and conclusively
disposes of the plaintiff s claim." ( emphasis added) Berger v. Temple Beth El of Great
Neck, 303 App.Div.2d 346 (2d Dept. 2003), quoting Trade Source v. Westchester Wood
Works, 290 App.Div.2d 437 (2d Dept. 2002). See also New York Schools Ins. Reciprocal
v. Gugliotti Associates, Inc., 305 App.Div.2d 563 (2d Dept. 2003).
28. The plaintiff herein has undoubtedly stated a cause of action for breach of contract upon which
relief can be granted. In its Complaint, plaintiff clearly sets forth that defendants
breached the Agreement herein by defaulting on invoices due and owing for products that
were sold and delivered. Plaintiff has produced a duly executed Credit Agreement that
executed by both defendants. It is undisputed that plaintiff performed pursuant to the Credit
Agreement by delivering product to the address requested by defendants on the Credit
Application. It is undisputed that the defendants failed to pay for the products that were
delivered to the address they listed on the Credit Agreement. It is further undisputed that
neither defendant has ever terminated the Agreement with the plaintiff and the defendant
has put forth no evidence of such.
29. Given the fact that defendants do not deny the allegations contained in the Complaint that
they executed the Credit Agreement and agreed to be responsible for the

product that was delivered pursuant to that credit application, it is surprising that they
choose to ignore the termination provision contained in the same Credit Agreement
when making their claims in the instant motion. Despite the fact that defendant-BULL
never formally terminated the contract with the plaintiff an despite the fact that to this
day defendant-FRYDMAN has never sent plaintiff a certified writing terminating the
ongoing personal guaranty, it is defendants contention that the sublease attached to their
motion wherein they supposedly ceased operating the restaurant and leased the premises
to another absolves them completely qf liability. It is respectfully submitted that it is of
no little consequence that defendants not only fail to cite to any precedent in support of
their claim that the foregoing supposedly constitutes a meritorious defense to the
plaintiff s claims herein, but that defendants similarly fail to attach an affidavit of
someone with firsthand knowledge of the facts and circumstances in this matter.
30. Defendants cite to no legal authority as the same does not constitute a meritorious defense
recognized by the Laws of the State of New York. Indeed, there is simply no statute or
case law that states that a party to a contract may be excused from its obligations
thereunder because that party decided to sublease its premises to another entity without
regard to an ongoing credit agreement with a vendor to deliver goods.
31. Further defendants fail to attach an affidavit of someone with personal knowledge of
the facts but submits only the affirmation of their attorney, Daniel C. Edelman, Esq.,
who does not have personal knowledge of the underlying facts and circumstances
herein. Such an affirmation by counsel is without evidentiary value.
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Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718 (1980) (holding: a

bare affirmation of the defendant's attorney who demonstrated no personal


knowledge of the manner in which the accident occurred is without evidentiary value
and is unavailing)
32. Defendants sole defense becomes more troublesome when viewed in light of the fact that
the Credit Agreement has a specific manner in which the personal guarantor may
terminate the Agreement, specifically, that defendant-FRYDMAN must have sentcertified
writing to the plaintiff formally terminating the agreement. Enforcing and upholding this
termination provision is extremely important in cases where, as here, the subsequent
lessee used the same trade name as the defendants.
33. As their sole "proof ' in support of the instant motion, defendants have attached a sublease
indicating they were no longer operating on the premises at the time and date of delivery
of the products sued upon herein. However defendants' sub-lease is of no consequence to
this action as (i) plaintiff is not a party to the sub-lease agreement and (ii) plaintiff was
not put on notice that defendant wished to terminate the Credit Agreement to permit the
new owners to make their own arrangements for product. Indeed the only documentary
evidence that could support a meritorious defense in this case is a writing that terminated
the underlying Credit Agreement and defendants have failed to attached such a
termination request. Absent such documentary evidence that would conclusively dispose of
plaintiff s claim, defendants' motion must fail in its entirety.
34.

Thus, it is respectfully submitted that defendants have certainly failed to


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proffer any evidence that plaintiff s Complaint warrants dismissal-as it clearly states a
cause of action upon which relief may be granted.
B.

Defendants' Motion to Dismiss should be denied because plaintiff


is not required to prove it's case with documentary evidence in its
Complaint

35. On a motion to dismiss pursuant to CPLR 321 l(a)(7) for failure to state a cause of action, the
Court must accept the facts alleged in the complaint as true, accord the plaintiff every
possible inference, and determine only whether the facts as alleged fit within any
cognizable legal theory. Porcelli v. Key Food Stores Co-operative, Inc., 44 A.D.3d 1020,
844 N.Y.S.2d 387 (2d Dept. 2007)
36. Whether a complaint will survive a motion for summary judgment, or whether the plaintiff
will ultimately be able to prove its claim, is irrelevant to a determination of predisclosure CPLR 3211 motion to dismiss. Porcelli v. Key Food Stores Co-operative,
Inc. , supra, 884 N.Y.S.2d. at 388.
37. The courts have also held that pursuant to a CPLR 321 l (a)(7) motion, if in any aspect upon
the facts stated the plaintiff is entitled to recovery, a motion to dismiss
for insufficiency must be denied. Upon such a motion, the function of the court is to look
to the substance rather than to the form. Kaufman v. Sweigard, 27A.D.2d 717, 277
N.Y.S.2d 498 (1st Dept. 1967)
38. Accordingly, the standard on a motion to dismiss a pleading for failure to state the cause of
action is not whether the party has artfully drafted a pleading, but whether, deeming the
pleading to allege whatever can be reasonably implied from its

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statements, a cause of action can be sustained. When deciding whether a cause of action
can be sustained, the pleadings must be liberally construed and the Court must accept the
facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible
inference, and determine only whether the facts as alleged fit into any cognizable legal
theory. Barry & Sons, Inc. v. Instinct Productions LLC, 5 Misc.3d 172, 783 N.Y.S.2d
225 (Sup. Ct. N.Y. Co. 2004) (reversed on other grounds)
39. In their motion, defendants complain that the plaintiff did not attach a copy of the underlying
agreement to the Complaint, without citing to any legal authority that would suggest this
is a viable basis to dismiss a Complaint under CPLR 3211(a)(7), which plaintiff submits
it is not as there is simply no legal requirement that a copy of the underlying agreement
be attached to the Complaint.
40. Plaintiff submits that the claims made by defendants therein, which plaintiff vehemently
disputes, should not be considered by this Court when rendering its decision as such
claims are outside the scope of review for a Motion to Dismiss pursuant to CPLR
321l(a)(7) as they go to the underlying merits of the case and not to what is set forth
within the four corners of the Complaint. Henbest & Morrisey, Inc. v. W.H. Ins. Agency,
Inc., et. al., 259 App.Div.2d 829, 686 N.Y.S.2d 207 (3d Dept. 1999) (A CPLR
3211 (a)(7) Motion to Dismiss may not be converted into a Motion for Summary
Judgment if issue has not yet been joined).
41. Plaintiff further submits that, not only are the contents of defendants' Motion to Dismiss
devoid of any viable legal basis to grant dismissal pursuant to CPLR

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321l(a)(7), but that, even applying the requisite standard, the face of the pleadings
clearly state a cause of action for breach of contract, account-stated and attorneys'

fees.

42. As discussed at length above, plaintiff herein has undoubtedly stated a cause of action for
breach of contract upon which relief can be granted. In its Complaint,
plaintiff clearly sets forth that defendants breached the Agreement herein by defaulting on
invoices due and owing for products that were sold and delivered. (Exhibit 2) Plaintiff has
produced a duly executed Credit Agreement that executed by both defendants. (Exhibit 1)
It is undisputed that plaintiff performed pursuant to the Credit Agreement by delivering
product to the address requested by defendants on the Credit Application. (Exhibit 2) It is
undisputed that the defendants failed to pay for the products that were delivered to the
address they listed on the Credit Agreement. (Exhibit 2) It is further undisputed that
neither defendant has ever terminated the Agreement with the plaintiff and the defendant has
put forth no evidence of such. (Exhibit 1) As such, it is respectfully submitted that

it

is clear upon a review of the four comers of the pleadings that plaintiff has stated a cause
of action upon which relief may be granted. Thus, applying the requisite standard for a
Motion to Dismiss pursuant to CPLR 3211(a)(7), it is respectfully submitted that
defendants Motion to Dismiss must be denied in its entirety.
43. A review of the complaint herein reflects that the first cause of action is for a breach of
contract and the plaintiff has submitted a copy of the contract entered into among the
parties hereto. (Exhibit 1)
44.

The second cause of action is for an account stated and the defendants

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-i

admit that plaintiff performed under the agreement. (Exhibit 2)


45. The third cause of action is for reasonable attorneys' fees which are provided for in
paragraph "5 11 in the Credit Agreement among the parties. (Exhibit 1)
46. Accordingly, each of the above causes of action express legally cognizable claims against the
defendants and cannot be determined, at this point in the litigation, based on any
evidence, since the plaintiff has not had the opportunity to present same to the Court in
evidentiary form.
II.

DEFENDANTS' MOTION TO DISMISS SHOULD BE


DENIED IN ITS ENTIRETY BECAUSE PLAINTIFF
HAS JOINED ALL NECESSARY PARTIES TO ITS
ACTION

47. Necessary parties are persons who ought to be parties if complete relief is to be accorded
between the persons who are parties to the action or who might be inequitably affected
by a judgment in the action shall be made plaintiffs or defendants. CPLR J OOJ (a).
48. Further, when a person should be joined under subdivision (a) has not been made a party
and is subject to the jurisdiction of the court, the court shall order him summoned.
CPLR J OOJ (b). .
49. Plaintiff joined only the defendants in this action because they are the only parties to the
Agreement. (See Exhibit 1). The defendants requested credit be extended to them and
plaintiff delivered product pursuant to the Credit Agreement. As discussed at length
above, at no time did defendants terminate their agreement, thus at all times

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relevant herein, defendants were and are the liable party for permitting a subsequent
tenant or order product on their credit account with the plaintiff. Specifically, at no time
even through their current motion have defendants shown that it was their intention to
terminate the Credit Agreement.
50. Indeed, as it is not uncommon in plaintiff s experience for the management or names of
restaurants at a given location to change completely, it was the defendants responsibility
to guard their credit account to ensure that no one they permitted on their premises
continued to order product on their account, if that was something they did not intend.
However regarding the plaintiff's action, the goods were sold and delivered to an address
that the defendants requested on their Credit Application and absent a formal termination,
and a certified writing terminating the personal guaranty, the Credit Agreement between
the plaintiff and the defendants remains, and any litigations enforcing the provisions
contained therein are appropriately brought against the defendants.
51. To be clear, the plaintiff is not a party to any sub-lease agreement that the defendants
allegedly had with a third party, as such they cannot be necessary parties to plaintiff's
lawsuit for breach of an unterminated Agreement that plaintiff had with defendants.
52. In any event, even if the third party that defendant believes is liable for the outstanding
invoices were a necessary party, which plaintiff maintains are not, plaintiff's failure to
join this party is not fatal to its claim in that CPLR I 00 I (b) expressly permits

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the court to order the party joined if it finds it to be a necessary party.


53. Specifically, the third party "Guestsy's", that defendants maintain is a necessary party,
though a foreign corporation, transacted business in New York and as such the Court
would

have jurisdiction to order it summoned into the action pursuant to CPLR I

00I(b). Given this option is available to the Court, dismissal is not appropriate where a
defect, if any, can be cured by bringing his party into the lawsuit.
54. It is respectfully submitted that defendant's motion should be denied in this
regard as plaintiff has joined all necessary parties who are liable under the
Credit Agreement herein. If the Court determines that the alleged sub-tenant
of the defendants is a necessary party, then the plaintiff requests that the
Court use its authority under CPLR 100I(b) and summon this party into the
lawsuit.

CONCLUSION
It is respectfully submitted that defendants' Motion to Dismiss should be denied in its

entirety as plaintiff has clearly set forth that it had adequately stated claims for breach
of contract and account stated. Plaintiff has demonstrated (i) that defendants supposed
documentary evidence is of no consequence to this action as the plaintiff is not a party
to the agreement defendant attaches in support of its claim and the same is not a
defense to plaintiff s cause of action and (ii) plaintiff was not required to attach
supporting documentation to its complaint but rather was required and actually did
adequately plead sufficient facts to put the defendants on notice of the transaction or
occurrence of events that were the basis of plaintiff s lawsuit.
55.

56.

57.
58.
59.
60.

Further, plaintiff has shown that since it was not a party to


defendants'
61.

62. supposed sub-lease with a third party, that third party is not a
necessary party to plaintiff s lawsuit brought under an unterminated
Credit Agreement between. the plaintiff and the defendants. However, if
the Court determines that the third party is a necessary party herein,
this is not a fatal defect as the Court may summon the necessary party
into this matter.
63.
64. WHEREFORE, affirmant respectfully requests that defendants'
motion to
65.

66. dismiss pursuant to CPLR 3211 be denied in all respects and for
such other, further and different relief as to this Court may seem just,
proper and equitable.
67.

Dated: Garden City, New York January 14, 2015


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72.
74. ROBERT N. COHEN
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