Professional Documents
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On October 11, 2022, the Commercial Division Justice for Bronx County,
Justice Gomez, issued a decision on a motion to dismiss in Chen v Fox
Rehab. Servs., P.C., 175 N.Y.S.3d 713, 2022 NY Slip Op 50986(U) (Sup. Ct.
Bronx Cnty. Oct. 11, 2022). Justice Gomez dismissed nine of ten claims
brought by the plaintiffs—for failures to state causes of action—and
separately dismissed most of the claims brought by an out-of-state plaintiff
—for lack of personal jurisdiction. However, the Court did not dismiss the
plaintiffs’ breach of contract claim, despite the defendants’ introducing of
documentary evidence aimed at defeating that claim.[i] The decision
provides a unique example of a pre-answer motion to dismiss based on
documentary evidence.
Background
The plaintiffs asserted ten claims: (1) fraud; (2) fraud by omission; (3)
fraudulent inducement; (4) fraudulent concealment; (5) negligent
misrepresentation; (6) breach of contract; (7) violation of the covenant of
good faith and fair dealing; (8) failure to pay compensation due under New
Yok labor law; (9) failure to pay compensation due under New Jersey labor
law; and (10) unjust enrichment.[v]
Personal Jurisdiction
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After going through the relevant standards of review, the Court tackled the
defendants’ personal jurisdiction arguments against the New Jersey
plaintiff. Starting with general jurisdiction, Justice Gomez observed that
none of the defendants, except for FTS as a New York incorporated LLC,
were residents of the state. Further, the Court stated that “beyond pleading
that Fox provides physical therapy services in the tri-state area, the
complaint is bereft of facts indicating that the defendants’ contacts with
New York were or are extensive, so as to confer general jurisdiction over
them” otherwise.[viii] Therefore, there was no general jurisdiction over any
of the defendants for the New Jersey plaintiff’s claims, except FTS.
Moving to specific jurisdiction, the Court held that the facts alleged in the
amended complaint were insufficient to demonstrate specific jurisdiction
through a business transaction under CPLR § 302. The assertions that Fox
provides services in the tri-state area and that one of the defendants
“simultaneously terminated the Plan in both New York and New Jersey”
failed to demonstrate “that the claims in the amended complaint arose from
defendants' business in New York”; in fact, the Court viewed the two-state
termination as a “vague and confusing assertion” that would “be insufficient
to establish the nexus between the claims in the amended complaint and
New York.”[ix] The Court further held that there was no specific jurisdiction
through a tortious action under CPLR § 302. There were no allegations that
the defendants committed the acts while they were in New York for
jurisdiction under § 302(a)(2), and the plaintiffs failed to allege the elements
required for specific jurisdiction stemming from out-of-state tortious
conduct under § 302(a)(3). Finally, the Court rejected the alternative of
discovery on personal jurisdiction, observing that “here the wholesale
absence of any allegations sufficient to confer personal jurisdiction over [the
New Jersey plaintiff]'s claims against defendants precludes any discovery
on the issue.”[x]
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Therefore, the Court dismissed all of the claims brought by the New Jersey
plaintiff, except for those against FTS, on personal jurisdiction grounds.
As noted above, when the plaintiffs requested the payout under the terms of
the SPD, the defendants denied their request on the basis that the actual
compensation plan (or the “Plan” in the decision) set the payout at an unmet
75% change of control and that, any event, the plan was actually terminated
in 2015.
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With those principles in mind, the Court determined that the documents
submitted by the defendants constituted documentary evidence under CPLR
§ 3211(a)(1) and stated that it “must view the allegations in the complaint
against the backdrop of these documents and resolve any conflict in favor of
the documents. This is no less true despite plaintiffs' assertion that they
question the authenticity and validity of the Plan and termination
document.”[xx] The Court held that the SPD was not the agreement
between the parties; instead, the Plan governed between the parties. Then,
pursuant to New Jersey choice-of-law provision in the Plan, the Court
moved from New York procedural law to New Jersey substantive law to
interpret the contract. The Court interpreted the termination provision
quoted above to “proscribe[] cancellation of the Plan if any participant had
earned equity appreciation under the terms of the Plan on the date of
cancellation.”[xxi] In their amended complaint, the Plaintiffs pled that the
defendants “knew that the company's value at the time the Plan was
terminated was higher than the value when plaintiffs and other employees
became participants in the Plan,” with the company doubling in size between
2010 and 2015.[xxii]
While the defendants submitted documents claiming that there was no value
at termination, the Court noted that “they submitted documents which only
conclusorily alleged that when the Plan was terminated, as relevant here,
that the company’s value was less than plaintiffs’ base value in the Plan”; the
“[d]efendants could and should have submitted documents detailing the
[specific values] . . . when the Plan was terminated thereby establishing that
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the Plan was terminated in accordance with its terms.”[xxiii] The Court
stated “the record is bereft of specific and detailed information establishing
that Fox terminated the Plan in accordance with section 8.2 of the same. As
such, dismissal of the breach of contract claim against the company for
failure to state a cause of action is denied.”[xxiv]
After sustaining the plaintiffs’ contract claim, the Court addressed the
arguments against the plaintiffs’ other claims. The Court observed that
claims for fraud, unjust enrichment, negligent misrepresentation, and the
implied covenant of good faith and fair dealing are duplicative if they arise
from the same facts as the breach of contract claim. The Court then stated
that “[h]ere, all of plaintiffs’ causes of action incorporate the entire complaint
by reference, which makes it clear that this entire action is solely premised
on the alleged unlawful termination of the Plan in 2015 and the failure to pay
sums due under the Plan in 2019 when the company was acquired . . . .”[xxv]
Therefore, the Court dismissed the following claims as duplicative: (1) fraud;
(2) fraud by omission; (3) fraudulent inducement; (4) fraudulent
concealment; (5) negligent misrepresentation; (7) violation of the covenant
of good faith and fair dealing; (10) and unjust enrichment.
The Court then addressed the plaintiffs’ remaining claims for (8) failure to
pay compensation due under New York labor law, (9) failure to pay
compensation due under New Jersey labor law. The Court quickly
determined that the plaintiffs’ claims under New York Labor Law § 190 failed,
because the incentive compensation in the Plan did not constitute wages
under New York labor law and were therefore outside of the ambit of § 190.
The Court also held that the results were the same under New Jersey Labor
and Workmen’s Compensation § 34:11-4.1 and the definition of wages under
that statute. Therefore, the Court dismissed these claims as well, leaving the
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Conclusion
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[xxiv] Id. at 12. At the end of the decision, the Court also denied the
defendants’ motion to dismiss the breach of contract claim under CPLR §
3211(a)(1) on the same grounds. Id. at 15. Furthermore, as noted earlier in
footnote 2 of the opinion, “Plaintiffs within their memorandum of law limit
their breach of contract claim solely to Fox and FTS, acknowledging that
they have no breach of contract claim against the individual defendants.” Id.
at 10 n.2.
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