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FILED: WESTCHESTER COUNTY CLERK 03/14/2023 01:02 PM INDEX NO. 68867/2022
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
---------------------------------------------------------------------X
LASHA Y'S CONSTRUCTION AND
DEVELOPMENT CO., INC. Index No.: 68867/2022
Plaintiffs,
-against-
UNITED HOISTING & SCAFFOLDING CORP.,
Defendant.
----------------------------------------------------------------------x
MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT' S MOTION TO DISMISS
ZISHOLTZ & ZISHOL TZ, LLP
Attorneys for Plaintiff
200 Garden City Plaza, Suite 408
Garden City, New York 11530
(516) 741-2200
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TABLE OF CONTENTS
Page(s)
PRELIMINARY STATEMENT ..................................................................................................... !
FACTUAL BACKGROUND ...................................................................................................... 2-4
ARGUMENT ............................................................................................................................... 2-7
POINT I LEGAL STANARD FOR PRE-ANSWER MOTION TO DISMISS ................ 3-4
POINT I PLAINTIFF HAS DEMONSTRATED BREACH OF CONTRACT CLAIM .. 5-7
CONCLUSION ................................................................................................................................ 8
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Preliminary Statement
Lashay's Construction and Development Co., Inc. ("Lashay") respectfully submits this
memorandum oflaw in opposition to Defendant, United Hoisting & Scaffolding Corp. (United")'s
motion to dismiss complaint pursuant to CPLR 3211 (a) (1) and (a) (7).
Contrary to United's argument, the cause of action for breach of contract should not be
dismissed because United is liable for the damages suffered by Plaintiff as a result of United's
breach of contract by its failure to make timely payment to Lashay under the contract for the labor
and services provided by Lashay at the project at Coney Island Hospital located at 2619 Ocean
Parkway, Brooklyn, New York ("Project"). Lashay has alleged sufficient facts to support
Plaintiffs claim for breach of contract and the court should not dismiss the first cause of action.
Annexed hereto and made a part hereof as Exhibit "D" is the amended complaint (NYSCEF
Doc.#>>)
FACTUAL BACKGROUNDS
Prior to May 2020, Lashay was approached by United for engaging to provide certain labor
and services at the Project. United told Lashay it had a construction contract with Turner
Construction who is the general contractor for the Coney Island Hospital Project which required
United to hire a minority subcontractor for the Project.
Lashay has been a registered black contractors in New York State for years. Prior to
COVID, there were more than 90,000 minority contractors registered in New York, but less than
one third black firms were survived after COVID. Lashay was one of the black registered
contractors survived COVID.
Lashay advised United that Lashay was having hard time to survive during COVID-19 and
indicated that Lashay could not take the job unless United assured all payments be made every two
weeks in a timely manner. United agreed and advised Lashay that there was nothing to be worried
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about and assured Lashay that no damages would be suffered by Lashay. (See Affidavit of
Simmons, ~5)
On or about May 15,2020, with United's representations and assurances, Lashay and United
entered into a subcontract agreement which Lashay was only to supply hoist operator and security
guards at the Project (Exhibit "A"). The contract provides that "Payment shall be made every two
week to subcontractor [Lashay] by contractor [United]".
In March 2021, United advised Lashay to lay off union workers from the Project and
brought Derrell Winfrey ("Winfrey") working as a hoist operator from May 2021 to end of July
2021 and then working as a security guard from August 2021 to approximately May 2022 at the
Project. Although Winfrey was on Lashay's payroll, United arranged Winfrey's work schedules
and changed Winfrey's duties at the Project from time to time. Winfrey was often given
instructions by United where to go and what work to perform during the Project. (Affidavit of
Simmons, ~7)
Between July 2020 to September 2022, Lashay billed United for its labor and services
rendered at the Project every two weeks (Exhibit "B") However, the payment began to fall behind
right after the work was commenced. 95% of the payment received from United were
approximately between 20 to 30 days past due, some of them were even exceeded 30 days (Exhibit
"C", payment summary spreadsheet). United failed to remit payment every two weeks pursuant to
the agreement and as a result, Lashay was unable to pay certain obligations to be paid.
On or about May 2, 2022, Winfrey instituted an action against Lashay' sin the United States
District Court, Eastern District, under Docket No. 22-cv-02506 alleging untimely payments for
wages and benefits. The claims asserted by Winfrey were a direct result of United's breach and
fraudulent representations.
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Apparently, United was using Lashay's minority contractor status in order to be awarded
the Project and make a significant profit. In exchange, United had no problem putting Lashay's in
a vulnerable and inferior situation, exposed it to liabilities which United would not have to face.
As a result, Lashay was sued by Winfrey and was forced to settle the matter in the sum of
$50,000. The only reason why Lashay's was in a lawsuit was because United breached its contract
with Lashay's. But for United's breach of contract, fraudulent inducement and negligent
misrepresentation, Lashay would not have been sued by Winfrey and suffer such damages.
ARGUMENT
POINT I
LEGAL STANDARD FOR PRE-ANSWER MOTION TO DISMISS
Upon a motion to dismiss, a pleading must be afforded a liberal construction. Leon v.
Martinez. 84 N.Y.2d 83, 614 N.Y.S.2d 972 (1994); Thomas v. Thomas, 70 A.D.3d 588, 896
N.Y.S.2d 30 (1st Dep't 2010), and the court accepts as true the facts alleged in the complaint and
any submissions in opposition to the dismissal motion. See, Sokoloff v Harriman Estates Dev
Corp., 96 N.Y.2d 409,729 N.Y.S.2d 425 (2001). Plaintiff is afforded the benefit of every possible
favorable inference. Id. at 414.
On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a
liberal construction, the court must take the allegations asserted within the plaintiffs complaint as
true and accord the plaintiff the benefit of every possible inference, determining only whether the
facts as alleged fit within any cognizable legal theory. Mandarin Trading Ltd. v. Wildenstein. 16
N.Y.3d 173, 919 N.Y.S.2d 465 (2011); Samiento v. World Yach Inc., 10 N.Y.3d 70, 79, 854
N.Y.S.2d 83 (2008); Knutt v. Metro Intern .. S.A., 91 A.D.3d 915, 938 N.Y.S.2d 134 (2d Dep't
2012). On the filing of this motion, the court must search the complaint with a depth and liberality
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to ascertain whether the fundament of a cause of action can be gleaned even from an obscure
statement of claim. Arnav Industries.Inc. Retirement Trust v. Brown, Raysman, Millstein, Felder
& Steiner, L.L.P., 96 N.Y.2d 300, 727 N.Y.S.2d 688 (2001). However, allegations consisting of
bare legal conclusions, or factual claims either inherently incredible or contradicted by
documentary evidence ae not entitled to a favorable inference. Roberts v. Pollack, 92 A.D.2d 440,
461 N.Y.S.2d 272 (1st Dep't 1983).
A motion to dismiss founded upon documentary evidence pursuant to CPLR 3211(a)(1)
"may be granted when documentary evidence submitted resolves all factual issues as a matter of
law and definitively disposes of plaintiffs claim." Berardino v Ochlan, 2 AD3d 556 (2nd Dep't
2003) Courts employ a case by case approach in determining what qualifies as documentary
evidence. To some extent documentary evidence is a fuzzy term, and what is documentary
evidence for one purpose might not be documentary evidence for another. Fontanetta v John Doe
L. 73 AD3d 78 (2nd Dep't 2010).
"In deciding a pre-answer motion, the court is not authorized to assess the relative mertis
of the complaint's allegations against the defendant's contrary assertions or to determine whether
or not plaintiff has produced evidence to support his claim." Salles v. Chase Manhattan Bank, 300
AD 2d 226, 228 (1st Dept 2002); see also, EBC I, Inc. v. Goldman Sachs & Co., 5 NY 3d 11, 19
(2005) ("whether a plaintiff can ultimately establish its allegations is not part of the calculus in
determining a motion to dismiss").
With all factual allegations accepted as true and Plaintiff accorded the benefit of all
favorable inferences, Plaintiff has stated causes of action against United.
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POINT II
PLAINTIFF HAS DEMONSTRATED BREACH OF CONTRACT CLAIM
To state a claim for breach of contract under New York Law, a plaintiff must only allege
(i) the existence of an agreement, (ii) adequate performance of the contract by plaintiff, (iii) breach
of contract by defendant, and (iv) damages. Dee v Rakower, 112 AD3d 204, 208-209, 976 NYS2d
470 (2013); see Elisa Dreier Reporting Corp. v Global NAPs Networks, Inc., 84 AD3d 122, 127,
921 NYS2d 329 (2011);JP Morgan Chase v JH Elec. o[NY, Inc., 69 AD3d 802,803, 893
NYS2d 237 (2010). Additionally, inherent in every contract in New York is an implied covenant
of good faith and fair dealing. See, 511 W 232nd Owners Corp. v. Jennifer Realty Co., 98 NY 2d
144, 1530(2002) ("While the duties of good faith and fair dealing do not imply obligations
inconsistent with other terms of the contractual relationship they do encompass and promises
which a reasonable person in the position of the promise would be justified in understanding were
included.") (citations and quotations omitted).
Lashay has alleged sufficient facts to support its claim for breach of contract. Plaintiff
alleges that (i) "on or about May 15, 2020, the defendant hired and engaged the plaintiff to perform
work, labor and services at the project known as and located at Coney Island Hospital, 2619 Ocean
Parkway, Brooklyn, New York" (Complaint, ~ 2, Amended Complaint, ~ 8); (ii) the plaintiff
performed all of the terms, covenants and conditions on its part to be performed under the terms
of the agreementwith the defendant" (Complaint,~ 9; Amended Complaint,~ 19); (iii) "pursuant
to the aforesaid agreement, the defendant was required to remit payment to the plaintiff every two
weeks" but "the defendant failed to remit payment to the plaintiff every two weeks as required
under the terms of the agreement with the plaintiff' (Complaint, ~ 3& 4; Amended Complaint, ~
13 & 14); and (iv) "as a result of defendant's breach, the plaintiff was unable to pay certain
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obligations required to be paid" and " has been damaged in the sum of $50,000" (Complaint, ~ 4,
10; Amended Complaint, ~ 17 & 20).
These allegations are sufficient to meet the standard for alleging a breach of contract action
against United. Mee Direct. LLC v. Automatic Data Processing Inc., 958 NYS 2d 385 (1st Dept
2013) (denying motion to dismiss and holding the plaintiff stated breach of contract claim against
a payroll company where plaintiff alleged it hired the payroll company for payroll services, payroll
company breach the contract by failure to provide proper payrolls to plaintiffs employees where
plaintiff was forced to pay a settlement in a class action brought its employees).
Here, United entered into a contract agreeing to reimburse Lashay oflabor cost for the hoist
operator and security guards pursuant to Union local labor rates every two weeks. (Exhibit "A").
Derrell Winfrey was the hoist operator specially requested by United to work at the Project. United
does not dispute that it failed to reimburse and pay Lashay every two weeks under the contract.
(Exhibit "B", e-mail from United admitting it did not make a timely payment to Lashay, Exhibit
"C", payment history reflecting payments made exceeded 14-45 days past due).
In a breach of contract action, a plaintiff "may recover general damages which are the
natural and probable consequence of the breach," as well as "consequential damages, which do not
so directly flow from the breach". Bi-Economy Mkt.. Inc. v Harleysville Ins. Co. o(N Y, 10 NY3d
187, 192, 886 NE2d 127, 856 NYS2d 505 (2008) (internal quotation marks and citation
omitted)(The Court of Appeal held that plaintiff is not precluded from seeking damages flowing
from the breach of contract, such as consequential damages). See also, Continental Cas. Co. v
PricewaterhouseCoopers. LLP, 15 NY3d 264, 271, 933 NE2d 738, 907 NYS2d 139
(2010); Fitzpatrick v Animal Care Hosp .. PLLC, 104 AD3d 1078, 1081-1082, 962 NYS2d 474
(2013); 2B NY PJI3d 4:20 at 197-198 (2017). Whether and to what extent plaintiff sustained
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such damages remains a question of fact for resolution at trial. Whitney Lane Holdings. LLC v Don
Realty, LLC, 159 AD3d 1163, 1166 (3d Dept 2018). Consequential damages are "designed to
compensate a party for reasonably foreseeable damages, [and] must be proximately caused by
the breach, and ... proven by the party seeking them." Bi-Economy, 10 NY3d at 193 (internal
citation omitted). Such a claim rests on the breach of contract claim, and a party may pursue
consequential damages based upon defendant's breach. Handy & Harman v Am. Inti. Group. Inc.,
2008 NY Slip Op 32366(U) (Sup Ct, NY County 2008) Both Bi-Economy and Panasia Estates.
Inc. v Hudson Insurance Co., 10 NY3d 200, 886 N.E.2d 135, 856 N.Y.S.2d 513 (2008)
support this, as both were breach of contract actions that allowed for consequential damages for
breach of contract claim. "(i]t is not necessary for the breaching party to have foreseen
the breach itself or the particular way the loss occurred, rather, 'it is only necessary that loss from
a breach is foreseeable and probable."' Bi-Economy 10 NY3d 187, at 193, quoting Restatement
[Second] of Contracts§ 351; 3 Farnsworth, Contracts§ 12.14 (2d ed 1990).
It is clear from the allegation that but for United failure to make timely payment, Lashay
would not be compelled to settle in the lawsuit commenced by Derrell Winfrey in the amount of
$50,000. Now, it is too pre-mature to dismiss a complaint before the defendant answers, because
in determining whether consequential damages were contemplated by the parties, court must "look
to 'the nature, purpose, and particular circumstances of the contract known by the parties ... as well
as what liability the defendant fairly may be supposed to have assumed consciously, or to have
warranted the plaintiff reasonably to supposed that it assumed, when the contract was
made."' !d. (quoting Ken(ord Co v County o(Erie, 73 NY2d 312, 319, 537 N.E.2d 176, 540
N.Y.S.2d 1 (1989).
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CONCLUSION
The defendant's motion becomes moot as an Amended Complaint (Exhibit "D") is filed
on (NYSCEF Doc# 12).
Respectfully submitted,
ZISHOLTZ & ZISHOLTZ, LLP
Meng Michelle Cheng
Attorneys for Plaintiff
200 Garden City Plaza, Suite 408
Garden City, New York 11530
(516) 741-2200
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WORD COUNT CERTIFICATION
Pursuant to Uniform Rules 202.8 of the Supreme Court ofthe State ofNew York, I
hereby certify that the total numbers of the words in the Memo of Law, excluding the caption,
table of contents, table of authorities, signature block, and word certification is 2,225.
By: h/ OUCH§ CU'ichelfg C?henff
Meng Michelle Cheng, Esq.
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Preview
FILED: WESTCHESTER COUNTY CLERK 03/14/2023 01:02 PM INDEX NO. 68867/2022 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ---------------------------------------------------------------------X LASHA Y'S CONSTRUCTION AND DEVELOPMENT CO., INC. Index No.: 68867/2022 Plaintiffs, -against- UNITED HOISTING & SCAFFOLDING CORP., Defendant. ----------------------------------------------------------------------x MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT' S MOTION TO DISMISS ZISHOLTZ & ZISHOL TZ, LLP Attorneys for Plaintiff 200 Garden City Plaza, Suite 408 Garden City, New York 11530 (516) 741-2200 1 of 11 FILED: WESTCHESTER COUNTY CLERK 03/14/2023 01:02 PM INDEX NO. 68867/2022 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/14/2023 TABLE OF CONTENTS Page(s) PRELIMINARY STATEMENT ..................................................................................................... ! FACTUAL BACKGROUND ...................................................................................................... 2-4 ARGUMENT ............................................................................................................................... 2-7 POINT I LEGAL STANARD FOR PRE-ANSWER MOTION TO DISMISS ................ 3-4 POINT I PLAINTIFF HAS DEMONSTRATED BREACH OF CONTRACT CLAIM .. 5-7 CONCLUSION ................................................................................................................................ 8 1 2 of 11 FILED: WESTCHESTER COUNTY CLERK 03/14/2023 01:02 PM INDEX NO. 68867/2022 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/14/2023 Preliminary Statement Lashay's Construction and Development Co., Inc. ("Lashay") respectfully submits this memorandum oflaw in opposition to Defendant, United Hoisting & Scaffolding Corp. (United")'s motion to dismiss complaint pursuant to CPLR 3211 (a) (1) and (a) (7). Contrary to United's argument, the cause of action for breach of contract should not be dismissed because United is liable for the damages suffered by Plaintiff as a result of United's breach of contract by its failure to make timely payment to Lashay under the contract for the labor and services provided by Lashay at the project at Coney Island Hospital located at 2619 Ocean Parkway, Brooklyn, New York ("Project"). Lashay has alleged sufficient facts to support Plaintiffs claim for breach of contract and the court should not dismiss the first cause of action. Annexed hereto and made a part hereof as Exhibit "D" is the amended complaint (NYSCEF Doc.#>>) FACTUAL BACKGROUNDS Prior to May 2020, Lashay was approached by United for engaging to provide certain labor and services at the Project. United told Lashay it had a construction contract with Turner Construction who is the general contractor for the Coney Island Hospital Project which required United to hire a minority subcontractor for the Project. Lashay has been a registered black contractors in New York State for years. Prior to COVID, there were more than 90,000 minority contractors registered in New York, but less than one third black firms were survived after COVID. Lashay was one of the black registered contractors survived COVID. Lashay advised United that Lashay was having hard time to survive during COVID-19 and indicated that Lashay could not take the job unless United assured all payments be made every two weeks in a timely manner. United agreed and advised Lashay that there was nothing to be worried 1 3 of 11 FILED: WESTCHESTER COUNTY CLERK 03/14/2023 01:02 PM INDEX NO. 68867/2022 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/14/2023 about and assured Lashay that no damages would be suffered by Lashay. (See Affidavit of Simmons, ~5) On or about May 15,2020, with United's representations and assurances, Lashay and United entered into a subcontract agreement which Lashay was only to supply hoist operator and security guards at the Project (Exhibit "A"). The contract provides that "Payment shall be made every two week to subcontractor [Lashay] by contractor [United]". In March 2021, United advised Lashay to lay off union workers from the Project and brought Derrell Winfrey ("Winfrey") working as a hoist operator from May 2021 to end of July 2021 and then working as a security guard from August 2021 to approximately May 2022 at the Project. Although Winfrey was on Lashay's payroll, United arranged Winfrey's work schedules and changed Winfrey's duties at the Project from time to time. Winfrey was often given instructions by United where to go and what work to perform during the Project. (Affidavit of Simmons, ~7) Between July 2020 to September 2022, Lashay billed United for its labor and services rendered at the Project every two weeks (Exhibit "B") However, the payment began to fall behind right after the work was commenced. 95% of the payment received from United were approximately between 20 to 30 days past due, some of them were even exceeded 30 days (Exhibit "C", payment summary spreadsheet). United failed to remit payment every two weeks pursuant to the agreement and as a result, Lashay was unable to pay certain obligations to be paid. On or about May 2, 2022, Winfrey instituted an action against Lashay' sin the United States District Court, Eastern District, under Docket No. 22-cv-02506 alleging untimely payments for wages and benefits. The claims asserted by Winfrey were a direct result of United's breach and fraudulent representations. 2 4 of 11 FILED: WESTCHESTER COUNTY CLERK 03/14/2023 01:02 PM INDEX NO. 68867/2022 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/14/2023 Apparently, United was using Lashay's minority contractor status in order to be awarded the Project and make a significant profit. In exchange, United had no problem putting Lashay's in a vulnerable and inferior situation, exposed it to liabilities which United would not have to face. As a result, Lashay was sued by Winfrey and was forced to settle the matter in the sum of $50,000. The only reason why Lashay's was in a lawsuit was because United breached its contract with Lashay's. But for United's breach of contract, fraudulent inducement and negligent misrepresentation, Lashay would not have been sued by Winfrey and suffer such damages. ARGUMENT POINT I LEGAL STANDARD FOR PRE-ANSWER MOTION TO DISMISS Upon a motion to dismiss, a pleading must be afforded a liberal construction. Leon v. Martinez. 84 N.Y.2d 83, 614 N.Y.S.2d 972 (1994); Thomas v. Thomas, 70 A.D.3d 588, 896 N.Y.S.2d 30 (1st Dep't 2010), and the court accepts as true the facts alleged in the complaint and any submissions in opposition to the dismissal motion. See, Sokoloff v Harriman Estates Dev Corp., 96 N.Y.2d 409,729 N.Y.S.2d 425 (2001). Plaintiff is afforded the benefit of every possible favorable inference. Id. at 414. On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the court must take the allegations asserted within the plaintiffs complaint as true and accord the plaintiff the benefit of every possible inference, determining only whether the facts as alleged fit within any cognizable legal theory. Mandarin Trading Ltd. v. Wildenstein. 16 N.Y.3d 173, 919 N.Y.S.2d 465 (2011); Samiento v. World Yach Inc., 10 N.Y.3d 70, 79, 854 N.Y.S.2d 83 (2008); Knutt v. Metro Intern .. S.A., 91 A.D.3d 915, 938 N.Y.S.2d 134 (2d Dep't 2012). On the filing of this motion, the court must search the complaint with a depth and liberality 3 5 of 11 FILED: WESTCHESTER COUNTY CLERK 03/14/2023 01:02 PM INDEX NO. 68867/2022 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/14/2023 to ascertain whether the fundament of a cause of action can be gleaned even from an obscure statement of claim. Arnav Industries.Inc. Retirement Trust v. Brown, Raysman, Millstein, Felder & Steiner, L.L.P., 96 N.Y.2d 300, 727 N.Y.S.2d 688 (2001). However, allegations consisting of bare legal conclusions, or factual claims either inherently incredible or contradicted by documentary evidence ae not entitled to a favorable inference. Roberts v. Pollack, 92 A.D.2d 440, 461 N.Y.S.2d 272 (1st Dep't 1983). A motion to dismiss founded upon documentary evidence pursuant to CPLR 3211(a)(1) "may be granted when documentary evidence submitted resolves all factual issues as a matter of law and definitively disposes of plaintiffs claim." Berardino v Ochlan, 2 AD3d 556 (2nd Dep't 2003) Courts employ a case by case approach in determining what qualifies as documentary evidence. To some extent documentary evidence is a fuzzy term, and what is documentary evidence for one purpose might not be documentary evidence for another. Fontanetta v John Doe L. 73 AD3d 78 (2nd Dep't 2010). "In deciding a pre-answer motion, the court is not authorized to assess the relative mertis of the complaint's allegations against the defendant's contrary assertions or to determine whether or not plaintiff has produced evidence to support his claim." Salles v. Chase Manhattan Bank, 300 AD 2d 226, 228 (1st Dept 2002); see also, EBC I, Inc. v. Goldman Sachs & Co., 5 NY 3d 11, 19 (2005) ("whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss"). With all factual allegations accepted as true and Plaintiff accorded the benefit of all favorable inferences, Plaintiff has stated causes of action against United. 4 6 of 11 FILED: WESTCHESTER COUNTY CLERK 03/14/2023 01:02 PM INDEX NO. 68867/2022 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/14/2023 POINT II PLAINTIFF HAS DEMONSTRATED BREACH OF CONTRACT CLAIM To state a claim for breach of contract under New York Law, a plaintiff must only allege (i) the existence of an agreement, (ii) adequate performance of the contract by plaintiff, (iii) breach of contract by defendant, and (iv) damages. Dee v Rakower, 112 AD3d 204, 208-209, 976 NYS2d 470 (2013); see Elisa Dreier Reporting Corp. v Global NAPs Networks, Inc., 84 AD3d 122, 127, 921 NYS2d 329 (2011);JP Morgan Chase v JH Elec. o[NY, Inc., 69 AD3d 802,803, 893 NYS2d 237 (2010). Additionally, inherent in every contract in New York is an implied covenant of good faith and fair dealing. See, 511 W 232nd Owners Corp. v. Jennifer Realty Co., 98 NY 2d 144, 1530(2002) ("While the duties of good faith and fair dealing do not imply obligations inconsistent with other terms of the contractual relationship they do encompass and promises which a reasonable person in the position of the promise would be justified in understanding were included.") (citations and quotations omitted). Lashay has alleged sufficient facts to support its claim for breach of contract. Plaintiff alleges that (i) "on or about May 15, 2020, the defendant hired and engaged the plaintiff to perform work, labor and services at the project known as and located at Coney Island Hospital, 2619 Ocean Parkway, Brooklyn, New York" (Complaint, ~ 2, Amended Complaint, ~ 8); (ii) the plaintiff performed all of the terms, covenants and conditions on its part to be performed under the terms of the agreementwith the defendant" (Complaint,~ 9; Amended Complaint,~ 19); (iii) "pursuant to the aforesaid agreement, the defendant was required to remit payment to the plaintiff every two weeks" but "the defendant failed to remit payment to the plaintiff every two weeks as required under the terms of the agreement with the plaintiff' (Complaint, ~ 3& 4; Amended Complaint, ~ 13 & 14); and (iv) "as a result of defendant's breach, the plaintiff was unable to pay certain 5 7 of 11 FILED: WESTCHESTER COUNTY CLERK 03/14/2023 01:02 PM INDEX NO. 68867/2022 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/14/2023 obligations required to be paid" and " has been damaged in the sum of $50,000" (Complaint, ~ 4, 10; Amended Complaint, ~ 17 & 20). These allegations are sufficient to meet the standard for alleging a breach of contract action against United. Mee Direct. LLC v. Automatic Data Processing Inc., 958 NYS 2d 385 (1st Dept 2013) (denying motion to dismiss and holding the plaintiff stated breach of contract claim against a payroll company where plaintiff alleged it hired the payroll company for payroll services, payroll company breach the contract by failure to provide proper payrolls to plaintiffs employees where plaintiff was forced to pay a settlement in a class action brought its employees). Here, United entered into a contract agreeing to reimburse Lashay oflabor cost for the hoist operator and security guards pursuant to Union local labor rates every two weeks. (Exhibit "A"). Derrell Winfrey was the hoist operator specially requested by United to work at the Project. United does not dispute that it failed to reimburse and pay Lashay every two weeks under the contract. (Exhibit "B", e-mail from United admitting it did not make a timely payment to Lashay, Exhibit "C", payment history reflecting payments made exceeded 14-45 days past due). In a breach of contract action, a plaintiff "may recover general damages which are the natural and probable consequence of the breach," as well as "consequential damages, which do not so directly flow from the breach". Bi-Economy Mkt.. Inc. v Harleysville Ins. Co. o(N Y, 10 NY3d 187, 192, 886 NE2d 127, 856 NYS2d 505 (2008) (internal quotation marks and citation omitted)(The Court of Appeal held that plaintiff is not precluded from seeking damages flowing from the breach of contract, such as consequential damages). See also, Continental Cas. Co. v PricewaterhouseCoopers. LLP, 15 NY3d 264, 271, 933 NE2d 738, 907 NYS2d 139 (2010); Fitzpatrick v Animal Care Hosp .. PLLC, 104 AD3d 1078, 1081-1082, 962 NYS2d 474 (2013); 2B NY PJI3d 4:20 at 197-198 (2017). Whether and to what extent plaintiff sustained 6 8 of 11 FILED: WESTCHESTER COUNTY CLERK 03/14/2023 01:02 PM INDEX NO. 68867/2022 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/14/2023 such damages remains a question of fact for resolution at trial. Whitney Lane Holdings. LLC v Don Realty, LLC, 159 AD3d 1163, 1166 (3d Dept 2018). Consequential damages are "designed to compensate a party for reasonably foreseeable damages, [and] must be proximately caused by the breach, and ... proven by the party seeking them." Bi-Economy, 10 NY3d at 193 (internal citation omitted). Such a claim rests on the breach of contract claim, and a party may pursue consequential damages based upon defendant's breach. Handy & Harman v Am. Inti. Group. Inc., 2008 NY Slip Op 32366(U) (Sup Ct, NY County 2008) Both Bi-Economy and Panasia Estates. Inc. v Hudson Insurance Co., 10 NY3d 200, 886 N.E.2d 135, 856 N.Y.S.2d 513 (2008) support this, as both were breach of contract actions that allowed for consequential damages for breach of contract claim. "(i]t is not necessary for the breaching party to have foreseen the breach itself or the particular way the loss occurred, rather, 'it is only necessary that loss from a breach is foreseeable and probable."' Bi-Economy 10 NY3d 187, at 193, quoting Restatement [Second] of Contracts§ 351; 3 Farnsworth, Contracts§ 12.14 (2d ed 1990). It is clear from the allegation that but for United failure to make timely payment, Lashay would not be compelled to settle in the lawsuit commenced by Derrell Winfrey in the amount of $50,000. Now, it is too pre-mature to dismiss a complaint before the defendant answers, because in determining whether consequential damages were contemplated by the parties, court must "look to 'the nature, purpose, and particular circumstances of the contract known by the parties ... as well as what liability the defendant fairly may be supposed to have assumed consciously, or to have warranted the plaintiff reasonably to supposed that it assumed, when the contract was made."' !d. (quoting Ken(ord Co v County o(Erie, 73 NY2d 312, 319, 537 N.E.2d 176, 540 N.Y.S.2d 1 (1989). 7 9 of 11 FILED: WESTCHESTER COUNTY CLERK 03/14/2023 01:02 PM INDEX NO. 68867/2022 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/14/2023 CONCLUSION The defendant's motion becomes moot as an Amended Complaint (Exhibit "D") is filed on (NYSCEF Doc# 12). Respectfully submitted, ZISHOLTZ & ZISHOLTZ, LLP Meng Michelle Cheng Attorneys for Plaintiff 200 Garden City Plaza, Suite 408 Garden City, New York 11530 (516) 741-2200 8 10 of 11 FILED: WESTCHESTER COUNTY CLERK 03/14/2023 01:02 PM INDEX NO. 68867/2022 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 03/14/2023 WORD COUNT CERTIFICATION Pursuant to Uniform Rules 202.8 of the Supreme Court ofthe State ofNew York, I hereby certify that the total numbers of the words in the Memo of Law, excluding the caption, table of contents, table of authorities, signature block, and word certification is 2,225. By: h/ OUCH§ CU'ichelfg C?henff Meng Michelle Cheng, Esq. 9 11 of 11