CIVIL COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK------------------------ -------- - - - ------------------- - - - ----)(COCA-COLA REFRESHMENTS USA, INC.f/k/a COCA-COLA ENTERPRISES, INC.,

Plaintiff,

AFFIRMATION IN OPPOSITION

-against-

BULL & BUDDHA, LLC d/b/a BULLand BUDDHA and MONICA FRYDMAN,

Defendants.----------------------------------------------------------------------------)(

Index No. 022542/14

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,

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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

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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 "811 is a copy of

the Summons and 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.

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ARGUMENTS

I. 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

.16. 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, 151·15, 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 Chas e , supra.

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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

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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 sent

certified 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 pre-disclosure CPLR §3211 motion to dismiss. Porcelli v. Key Food

Sto re s Co-operati v e , I nc. , s upra, 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-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 "511

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

14

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

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.

WHEREFORE, affirmant respectfully requests that defendants' motion to

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.

Dated: Garden City, New York January 14, 2015

ROBERT N. COHEN

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