THE COMPLAINT STATED A CAUSE OF ACTION FOR BREACH OF IMPLIED CONTRACT AND DEFENDANT’S MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).
The Fourth Department, reversing Supreme Court, determined the complaint stated a cause of action for breach of implied contract and the defendant’s motion to dismiss the breach of implied cause of action based on documentary evidence should not have been granted:
“Whether an implied-in-fact contract was formed and, if so, the extent of its terms, involves factual issues regarding the intent of the parties and the surrounding circumstances” … . Contrary to the court’s determination, whether plaintiff “can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” … and, here, plaintiff’s allegations sufficiently state a cause of action for breach of an implied contract arising from an implicit agreement to extend the brokerage contract … . Similarly, the complaint sufficiently alleges the elements of a claim for unjust enrichment … .
… “A motion to dismiss pursuant to CPLR 3211 (a) (1) will be granted if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the [plaintiff’s] claim[s]” … . Although contracts are among the types of documentary evidence that may be considered for purposes of CPLR 3211 (a) (1) … , we conclude that the contract submitted by defendants in support of their motion failed to “utterly refute . . . plaintiff’s allegations [that the contract was implicitly extended] or conclusively establish a defense as a matter of law” … . University Hill Realty, Ltd v Akl, 2023 NY Slip Op 01634, Fourth Dept 3-24-23
Practice Point: Here the breach of implied contract cause of action should not have been dismissed.
Practice Point: The motion to dismiss the breach of implied contract cause of action based on documentary evidence should not have been granted. Although a contract can be the type of evidence which qualifies as “documentary evidence” here the contract did not utterly refute the allegation the contract was extended.