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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023
SUPREME COURT OF THE STATE OF NEW YORK
IN AND FOR THE COUNTY OF NEW YORK
RYAN URBAN and GIGI GROUP, LLC, Index No. 651660/2023 .
Plaintiffs,
~ versus ~
MOTION #001
HUDSON CAPITAL GROUP VENTURES, LLC, Motion to Dismiss
Amended Complaint
Defendant.
DEFENDANT’S MEMORANDUM OF LAW
in support of
MOTION TO DISMISS AMENDED COMPLAINT
Respectfully Submitted July 31, 2023
by Baruch S. Gottesman, Esq.
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I. Table of Contents
I. Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
III. Introductory Statement: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
IV. Factual and Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
V. Argument: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. Gigi Group, LLC is not in Privity with the Defendant
and therefore has no Claim against the Defendant . . . . . . . . . . . . . 9
B. The claim for Unjust Enrichment is duplicative of
the Claim for Breach of Contract . . . . . . . . . . . . . . . . . . . . . . . . . 12
C. The Amended Complaint fails to Allege
a Claim for Breach of Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
D. The Voluntary Payment Doctrine
Bars Plaintiffs’ Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
E. Plaintiffs’ Allegations are Belied by the
Documentary Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
VI. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 202.8-b Certificate of Counsel (Length of Papers) . . . . . . . . . . . . . . . . . . . . . . . . 17
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II. Table of Authorities
i. Cases
Blanchard v. Blanchard,
201 N.Y. 134, 94 N.E. 630 (1911) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Clark-Fitzpatrick, Inc. v. Long Island R. Co.,
70 N.Y.2d 382 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Consolidated Rest. Operations, Inc. v. Westport Ins. Corp.,
205 A.D.3d 76 (1st Dep’t 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12
Corsello v. Verizon N.Y., Inc.,
18 N.Y.3d 777 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Dillon v. U-A Columbia Cablevision of Westchester, Inc.,
100 N.Y.2d 525 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Evans v. Famous Music Corp.,
302 A.D.2d 216 (1st Dep’t 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Gimbel Bros. Inc., v. Brook Shopping Centers, Inc.,
118 A.D.2d 532 (2d Dep’t 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Ging v. F.J. Sciame Constr. Co., Inc.,
193 A.D.3d 415 (1st Dep’t 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13
Ivan Mogull Music Corp. v. Madison-59th Street Corp.,
162 A.D.2d 336 (1st Dep’t 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10
Lam Pearl St. Hotel, LLC v. Golden Pearl Constr. LLC,
200 A.D.3d 521 (1st Dep’t 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14
Leon v. Martinez,
84 N.Y.2d 83 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9
Mandarin Trading Ltd. v. Wildenstein,
16 N.Y.3d 173 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Mendel v. Henry Phipps Plaza W., Inc.,
6 N.Y.3d 783 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Morone v. Morone,
50 N.Y.2d 481 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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Parola, Gross & Marino, P.C. v. Susskind,
43 A.D.3d 1020 (2d Dep’t 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Phillips v. Trommel Constr.,
101 A.D.3d 1097 (2d Dep’t 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Republic Nat'l Bank of N.Y. v. Olshin Woolen Co.,
304 A.D.2d 401 (1st Dep’t 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Rodolitz v. Neptune Paper Products, Inc.,
22 N.Y.2d 383 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Rovello v. Orofino Realty Co.,
40 N.Y.2d 633 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Sokoloff v. Harriman Estates Dev. Corp.,
96 N.Y.2d 409 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Tenuto v. Lederle Lab.,
90 N.Y.2d 606 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ii. Statutes:
C.P.L.R § 3211(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
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III. INTRODUCTORY STATEMENT
The Amended Complaint (NYSCEF Doc. 9)1 seeks the wrong relief for the
wrong claim by the wrong party. The Defendant respectfully submits that it must be
dismissed with prejudice.
The Claim is brought by the wrong Party – The Amended Complaint should
be dismissed as to the purported claims by Gigi Group, LLC because Gigi has no privity
with the Defendant. The Engagement Letter (NYSCEF Doc. 10), on which the Breach of
Contract claim is based, purports to be entered into by and between Plaintiff Urban and the
Defendant. Gigi Group, LLC is not a party to that Agreement. Further, the Engagement
Letter at ¶ 3(a) and (b) expressly provides that the compensation requirements are the
personal responsibility of Plaintiff Urban. So even if Gigi Group, LLC, were somehow in
privity with Defendant, it has no claim for payments that its co-Plaintiff’s personally paid.
Since there is no privity between Gigi Group, LLC and the Defendant, any
claim purportedly brought in the name of Gigi Group, LLC must be dismissed and with
prejudice.
The Claim is brought for the wrong Claim – The Amended Complaint seeks
relief under a theory that the Defendant breached a contract. And despite there being no
issue raised as to the validity of the contract, the Amended Complaint seeks relief in the
alternative under a theory of unjust enrichment. The First Appellate Division has long held
and the Court of Appeals has confirmed that the existence of a valid and enforceable written
1
Consistent with Section 202.70(g) of the Uniform Rules for the Supreme and County Courts (Rules of
Practice for the Commercial Division), Rule 6(c)(1) hyperlinks in this Memorandum of Law are to the
NYSCEF Docket or LEXIS database, unless otherwise indicated.
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contract governing a particular subject matter ordinarily precludes recovery under
equitable theories arising out of the same subject matter.
Since the cause of action for Unjust Enrichment is duplicative of the claim
for Breach of Contract, it must be dismissed and with prejudice.
The Claim is brought for the wrong Relief – The Engagement Letter
expressly indemnifies the Defendant from any liability to Plaintiff except for: (i.) gross
negligence, bad faith or willful misconduct; (ii.) ultra vires actions; or (iii.) HCGV’s failure
or refusal to comply with applicable law. The Amended Complaint does not and cannot
allege any gross negligence, bad faith or willful misconduct. Nor does it allege any ultra
vires action or failure or refusal to comply with the law. The Amended Complaint alleges
that the Defendant failed to provide the agreed-upon services and – in contradiction to that
alleged failure to provide services – that any services provided by Defendant were minimal,
deficient, or otherwise not to the Plaintiffs’ benefit, Amended Complaint at ¶¶ 6-7.
Whichever of those two contradictory claims are true, they cannot make the Defendant
liable as provided under the Indemnification clause.
Since the Engagement Letter expressly provides that “[u]nder no
circumstances” would the Defendant be liable for any alleged failure provide the services
(or if the services provided were minimal, deficient or otherwise not to Plaintiffs’ benefit)
the claims must be dismissed with prejudice.
Further – to the extent that a non-indemnified claim is alleged, the
documentary evidence conclusively shows that services were provided, and that the
provided services were far from minimal, deficient and not to Plaintiffs’ benefit. This was
admitted by the Plaintiffs in writing and confirmed in deed by their continued monthly
payments to the Defendant without complain about the progress of the project.
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The documentary evidence also shows that the Defendant willingly and knowingly
continued voluntarily make payments for services actually received, rendering any claim
moot under the voluntary payments doctrine.
Since the documentary evidence conclusively disproves the Plaintiffs’
claims, they must be dismissed with prejudice.
For these reasons and those more fully explored in this Memorandum of
Law, the Defendant respectfully submits that the Amended Complaint must be dismissed
and with prejudice.2
IV. FACTUAL AND PROCEDURAL BACKGROUND
Accepting as true the allegations in the Amended Complaint, See Sokoloff
v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414 (2001) citing Tenuto v. Lederle Lab.,
90 N.Y.2d 606, 609-610 (1997); Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994), in July
2021, the Plaintiff Ryan Urban (referred to here sometimes as “Urban”) entered into a
contract with the Defendant Hudson Capital Group Ventures, LLC (referred to here
sometimes as “Hudson” or “Defendant”), Amended Complaint at ¶ 4 and Exhibit A.
To be precise, while the Amended Complaint, claims that the contract was
entered into between “PlaintiffS and Hudson” and that “PlaintiffS retained Hudson”,
Amended Complaint at ¶ 4, the Engagement Letter itself “confirm[s] the arrangement
under which Hudson [] has been engaged by Ryan Urban . . . .” Engagement Letter at
Preamble.
2
All this is submitted without prejudice to the Defendant’s counterclaim for indemnification for their
legal fees in defending this claim as provided under the Engagement Letter,¶ 6, Second Paragraph.
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In other words: the Engagement Letter, which is incorporated by reference
in the Amended Complaint, shows that the sole relationship here was between Urban and
Hudson. Gigi Group, LLC is simply not in the mix and the Court need not accept as true
an allegation blatantly contradicted by the Plaintiff’s own documentary evidence.
The Engagement Letter provides that Hudson would provide various
advisory services in support of project to develop a new restaurant and nightclub at
138 Bowery, known by the placeholder name: “Project Goldman Snacks”.
For half a year, Hudson provided services and the Plaintiff voluntarily paid
their monthly payment and graciously acknowledged the receipt of and the quality of the
work product produced by the Defendant. See Mandel Affidavit in Support of Motion to
Dismiss at ¶ 6 and Exhibit G.
In late 2022, the Parties had a falling out and went their separate ways.
The Plaintiffs docketed a Summons with Notice (NYSCEF Doc. 1) this
Spring, which the Plaintiff served on the Secretary of State (NYSCEF Doc. 2) in April.
Hudson appeared and demanded the Complaint (NYSCEF Doc. 5). Plaintiff filed a
Complaint (NYSCEF Doc. 8) and then an Amended Complaint with an Exhibit (NYSCEF
Doc. 9-10). The pleading at issue in this Motion to Dismiss is the Amended Complaint, a
complete, true and accurate copy of which is annexed as Exhibit A to the Gottesman
Affirmation in Support.
In their Amended Complaint, the Plaintiffs allege that Hudson “failed to
provide the advisory and capital raising services” and “any services that were provided by
Hudson were minimal, deficient, and were otherwise not to Plaintiffs’ benefit.” Amended
Complaint at ¶¶ 6-7. These factual allegations belied by the documentary record.
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On this basis, the Plaintiff seeks recovery of one hundred and twenty-five
thousand dollars ($125,000.00) for Breach of Contract, Amended Complaint at ¶¶ 1-11,
and Unjust Enrichment, Amended Complaint at ¶¶ 12-15.
Defendant’s time to Answer having been extended until August 1, 2023,
See Stipulation (NYSCEF Doc. 11), the Defendant now respectfully moves to Dismiss the
Amended Complaint with Prejudice.
V. ARGUMENT:
A. Gigi Group, LLC is not in Privity with the Defendant
and therefore has no Claim against the Defendant
Under Leon v. Martinez, 84 N.Y.2d 83 (1994) the question is not whether
the Plaintiff feels aggrieved but whether “the facts as alleged fit within any cognizable legal
theory” Leon, Id. at 87-88 citing Morone v. Morone, 50 N.Y.2d 481, 484 (1980); Rovello
v. Orofino Realty Co., 40 N.Y.2d 633, 634 (1976). However “[a] complaint ‘cannot be
vague and conclusory’, and ‘[b]are legal conclusions and factual claims which are flatly
contradicted by the record are not presumed to be true.” Consolidated Rest. Operations,
Inc. v. Westport Ins. Corp., 205 A.D.3d 76, 86 (1st Dep’t 2022)(alterations and quotations
in original) citing Parola, Gross & Marino, P.C. v. Susskind, 43 A.D.3d 1020, 1021-22 (2d
Dep’t 2007) and Phillips v. Trommel Constr., 101 A.D.3d 1097, 1098 (2d Dep’t 2012).
The factual and/or legal claim that Gigi Group, LLC is party to a contract
with the Defendant is belied by record. The only contract at issue – the Engagement Letter
– is expressly between Urban, personally, and the Defendant. Gigi Group, LLC is not a
party to the contract and is not in privity with the Defendant. A claim for breach of contract
requires that the Parties actually be a party to a contract. The First Department for example
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held that “[a]bsent privity of contract between plaintiff [] and defendants [], defendants are
entitled to summary judgment dismissing the first cause of action for breach of contract.”
Ivan Mogull Music Corp. v. Madison-59th Street Corp., 162 A.D.2d 336, 337 (1st Dep’t
1990).
“It is well settled that a court may not, under the guise of interpretation,
fashion a new contract for the parties by adding or excising terms and conditions which
would contradict the clearly expressed language of the contract.” Republic Nat'l Bank of
N.Y. v. Olshin Woolen Co., 304 A.D.2d 401, 402 (1st Dep’t 2003) citing Rodolitz v.
Neptune Paper Products, Inc., 22 N.Y.2d 383, 386-87 (1968); Evans v. Famous Music
Corp., 302 A.D.2d 216 (1st Dep’t 2003).
To summarize: Since Gigi Group, LLC is not in privity with the Defendant,
it has no standing to bring a claim for Breach of Contract, it has alleged no claim against
the Defendant, and it cannot allege any claim against the Defendant. Accordingly, any
claim in the Amended Complaint purportedly brought in the name of Gigi Group LLC
must be dismissed and with prejudice.
To the extent that the Plaintiffs may argue that Gigi Group, LLC is a third
party beneficiary to the contract, the Plaintiffs would have had to plausibly allege:
“(1) the existence of a valid and binding contract between
other parties,
(2) that the contract was intended for [its] benefit, and
(3) that the benefit to [it] is sufficiently immediate . . . to
indicate the assumption by the contracting parties of a
duty to compensate [it] if the benefit is lost.”
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Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182 (2011)
(alterations in original) citing Mendel v. Henry Phipps Plaza W., Inc., 6 N.Y.3d 783, 786
(2006).
At no time does the Amended Complaint allege that the Engagement Letter
was intended for the benefit of Gigi Group, LLC. At no time does the Amended
Complaint allege that the benefit to Gigi Group, LLC was sufficiently immediate to
indicate the assumption by the Defendant of a duty to compensate Gigi Group, LLC if the
benefit was lost. It would be unfair to spring on the Defendant’s liability to an unknown
party that is a stranger to the contract absent some allegations that there was some express
assumption of liability as to Gigi Group, LLC by the Defendant.
For these reasons, Hudson respectfully submits that any claim in the name
of Gigi Group, LLC must be dismissed and with prejudice.
B. The claim for Unjust Enrichment is duplicative of
the Claim for Breach of Contract
The Court of Appeal confirmed that: “The existence of a valid and
enforceable written contract governing a particular subject matter ordinarily precludes
recovery in quasi contract for events arising out of the same subject matter.” Clark-
Fitzpatrick, Inc. v. Long Island R. Co., 70 N.Y.2d 382, 388 (1987) citing Blanchard v.
Blanchard, 201 N.Y. 134, 94 N.E. 630 (1911). Further, “[a]n unjust enrichment claim is
not available where it simply duplicates, or replaces a conventional contract or tort claim.”
Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790-91 (2012) citing Clark Fitzpatrick,
Inc., and collecting cases.
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The Second Cause of Action in the Amended Complaint incorporates by
reference all the allegations made in First Cause of Action, Amended Complaint at ¶ 12.
Other than a rehearsal of the elements of Unjust Enrichment, there are no claims
independent of the funds that the Plaintiff admits were paid pursuant to the contract.
For these reasons, Hudson respectfully submits that the Cause of Action for
Unjust Enrichment must be dismissed and with prejudice.
C. The Amended Complaint fails to Allege
a Claim for Breach of Contract
As cited above “factual claims [in a pleading] which are flatly contradicted
by the record are not presumed to be true [for purposes of a Motion to Dismiss].”
Consolidated Rest. Operations, Inc., 205 A.D.3d at 86.
In this case, the Engagement Letter shows that the Parties negotiated and
agreed to a highly idiosyncratic indemnification clause that absolved HCGV from liability
arising from the services they would provide Plaintiff. It provided:
“Under no circumstances shall HCGV, in the performance
of this Agreement, be liable to Ryan or any other person for
any act or omission of HCGV, unless such liability is due to
(a) HCGV's gross negligence, bad faith or willful
misconduct, b) actions taken by HCGV outside the scope of
services under this Agreement, or (c) HCGV's failure or
refusal to comply with applicable law with respect to this
Agreement or the services in any manner or with HCGV's
obligations under this Agreement.
Engagement Letter at ¶ 6, First Paragraph.
Therefore, on its face, the Amended Complaint’s allegations about the
services being “minimal, deficient, and [] otherwise not to Plaintiffs’ benefit”, Amended
Complaint ¶ 7, and/or not provided at all, Amended Complaint ¶ 6, are simply not
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actionable. The Parties agreed that liability cannot be imposed on the Defendant except
under three specific circumstances none of which are alleged.
Admittedly, the indemnification clause included in the Engagement Letter
is extremely broad. But that was the Parties’ decision to negotiate for the scope of the
indemnification clause. The right to indemnification “depends upon the specific language
of the contract”, Ging v. F.J. Sciame Constr. Co., Inc., 193 A.D.3d 415, 417 (1st Dep’t
2021)(collecting cases). In this case, the Parties expressly agreed that Defendant would
face no liability arising from this engagement in the absence of gross negligence, bad faith,
willful misconduct, ultra vires activity, or failure/refusal to comply with the law. The
Amended Complaint makes no allegation that would fit into any exception from the broad
immunity clause and therefore the Causes of Action must be dismissed with prejudice.
What’s more, the documentary evidence introduced with this Motion to
Dismiss by the Defendant and discussed below shows that as a factual matter, the services
were provided to the full satisfaction of the Plaintiff. Which is why the Plaintiff voluntarily
paid the Defendant monthly without complaint for nearly half a year.
For these reasons, Hudson respectfully submits that the Engagement Letter
fully immunizes the Defendant and the Causes of Action for Breach of Contract and
Unjust Enrichment must be dismissed and with prejudice.
D. The Voluntary Payment Doctrine
Bars Plaintiffs’ Claims
In New York, the “common law doctrine [of voluntary payment] bars
recovery of payments voluntarily made with full knowledge of the facts, and in the
absence of fraud or mistake of material fact or law.” Dillon v. U-A Columbia Cablevision
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of Westchester, Inc., 100 N.Y.2d 525, 526 (2003) citing Gimbel Bros. Inc., v. Brook
Shopping Centers, Inc., 118 A.D.2d 532, 535-56 (2d Dep’t 1986). It also bars recovery
of voluntary payments under a theory of unjust enrichment, See, e.g., Lam Pearl St. Hotel,
LLC v. Golden Pearl Constr. LLC, 200 A.D.3d 521, 522 (1st Dep’t 2021)(“unjust
enrichment claim was barred by the voluntary payments doctrine”).
The Amended Complaint admits that the Plaintiffs voluntarily made
payments to the Defendant in accordance with the terms of the contract, which is to say
on a monthly basis, See Amended Complaint at ¶ 5; Engagement Letter at ¶ 3(a). The
documentary evidence further confirms that the payments were voluntarily made on a
monthly basis, for which Plaintiff Urban “thanked” the Defendant as late as October 2021.
The Amended Complaint makes no allegation of any fraud by the Defendant or any
mistake of material fact or law on the Plaintiff’s part which would have triggered the
wrongful payments.
For these reasons, Hudson respectfully submits that the Voluntary Payment
doctrine bars any cause of action for Breach of Contract or Unjust Enrichment, and the
Amended Complaint must be dismissed and with prejudice.
E. Plaintiffs’ Allegations are Belied by the
Documentary Evidence
The Breach of Contract claim is based on two contradictory claims. The
Amended Complaint makes the following two inconsistent factual allegations:
“6. Hudson breached the parties’ contract/Engagement Letter by failing
to provide the advisory and capital raises services as agreed upon.
“7. Any services that were provided by Hudson were minimal,
deficient, and were otherwise not to Plaintiffs’ benefit.”
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The documentary evidence conclusively establishes that the Defendant did
provide the advisory and capital services. See Mandel Affidavit in Support at ¶ 5 and
Exhibits A-E; and G, showing among other things, the substantial amount of services that
Defendant provided Plaintiff and how Urban “thanked” the Defendant for their work
product.
That same documentary conclusively disproves any allegation that the
services were “minimal, deficient, and were otherwise not to Plaintiffs’ benefit” – not that
any of these alleged characterizations of the alleged breach would substantiate a claim that
the Defendant should be liable for returning the funds they were fairly paid.
For these reasons, Hudson respectfully submits that the documentary
evidence conclusively disproves any allegation Payment doctrine bars any cause of action
for Breach of Contract or Unjust Enrichment, and the Amended Complaint must be
dismissed and with prejudice.
[Remainder of Page Intentionally Left Blank]
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VI. CONCLUSION
For the reasons described above, the Defendant respectfully submits that the
Amended Complaint must be Dismissed with Prejudice.
DATED: July 31, 2023
RESPECTFULLY SUBMITTED,
By:
Baruch S. Gottesman, Esq.
New York Bar No. 4480539
GOTTESMAN LEGAL PLLC
11 Broadway, Suite 615
New York, NY 10004
Phone: (212) 401-6910
Fax: (212) 859-7307
bg@gottesmanlegal.com
Attorney for Defendant
Served via NYSCEF on all appearing parties
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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023
Section 202.8-b Certificate of Counsel (Length of Papers)
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This Memorandum of Law 2,817 words excluding the caption, table of contents, table of
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Baruch S. Gottesman, Esq.
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FILED: NEW YORK COUNTY CLERK 08/01/2023 08:51 AM INDEX NO. 651660/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023 SUPREME COURT OF THE STATE OF NEW YORK IN AND FOR THE COUNTY OF NEW YORK RYAN URBAN and GIGI GROUP, LLC, Index No. 651660/2023 . Plaintiffs, ~ versus ~ MOTION #001 HUDSON CAPITAL GROUP VENTURES, LLC, Motion to Dismiss Amended Complaint Defendant. DEFENDANT’S MEMORANDUM OF LAW in support of MOTION TO DISMISS AMENDED COMPLAINT Respectfully Submitted July 31, 2023 by Baruch S. Gottesman, Esq. 1 1 of 17 FILED: NEW YORK COUNTY CLERK 08/01/2023 08:51 AM INDEX NO. 651660/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023 I. Table of Contents I. Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 II. Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 III. Introductory Statement: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 IV. Factual and Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 V. Argument: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. Gigi Group, LLC is not in Privity with the Defendant and therefore has no Claim against the Defendant . . . . . . . . . . . . . 9 B. The claim for Unjust Enrichment is duplicative of the Claim for Breach of Contract . . . . . . . . . . . . . . . . . . . . . . . . . 12 C. The Amended Complaint fails to Allege a Claim for Breach of Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 D. The Voluntary Payment Doctrine Bars Plaintiffs’ Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 E. Plaintiffs’ Allegations are Belied by the Documentary Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 VI. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Section 202.8-b Certificate of Counsel (Length of Papers) . . . . . . . . . . . . . . . . . . . . . . . . 17 Page 2 of 17 2 of 17 FILED: NEW YORK COUNTY CLERK 08/01/2023 08:51 AM INDEX NO. 651660/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023 II. Table of Authorities i. Cases Blanchard v. Blanchard, 201 N.Y. 134, 94 N.E. 630 (1911) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Clark-Fitzpatrick, Inc. v. Long Island R. Co., 70 N.Y.2d 382 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12 Consolidated Rest. Operations, Inc. v. Westport Ins. Corp., 205 A.D.3d 76 (1st Dep’t 2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12 Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Dillon v. U-A Columbia Cablevision of Westchester, Inc., 100 N.Y.2d 525 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Evans v. Famous Music Corp., 302 A.D.2d 216 (1st Dep’t 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Gimbel Bros. Inc., v. Brook Shopping Centers, Inc., 118 A.D.2d 532 (2d Dep’t 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Ging v. F.J. Sciame Constr. Co., Inc., 193 A.D.3d 415 (1st Dep’t 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13 Ivan Mogull Music Corp. v. Madison-59th Street Corp., 162 A.D.2d 336 (1st Dep’t 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10 Lam Pearl St. Hotel, LLC v. Golden Pearl Constr. LLC, 200 A.D.3d 521 (1st Dep’t 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14 Leon v. Martinez, 84 N.Y.2d 83 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9 Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Mendel v. Henry Phipps Plaza W., Inc., 6 N.Y.3d 783 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Morone v. Morone, 50 N.Y.2d 481 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Page 3 of 17 3 of 17 FILED: NEW YORK COUNTY CLERK 08/01/2023 08:51 AM INDEX NO. 651660/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023 Parola, Gross & Marino, P.C. v. Susskind, 43 A.D.3d 1020 (2d Dep’t 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Phillips v. Trommel Constr., 101 A.D.3d 1097 (2d Dep’t 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Republic Nat'l Bank of N.Y. v. Olshin Woolen Co., 304 A.D.2d 401 (1st Dep’t 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Rodolitz v. Neptune Paper Products, Inc., 22 N.Y.2d 383 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Rovello v. Orofino Realty Co., 40 N.Y.2d 633 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Tenuto v. Lederle Lab., 90 N.Y.2d 606 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ii. Statutes: C.P.L.R § 3211(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Page 4 of 17 4 of 17 FILED: NEW YORK COUNTY CLERK 08/01/2023 08:51 AM INDEX NO. 651660/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023 III. INTRODUCTORY STATEMENT The Amended Complaint (NYSCEF Doc. 9)1 seeks the wrong relief for the wrong claim by the wrong party. The Defendant respectfully submits that it must be dismissed with prejudice. The Claim is brought by the wrong Party – The Amended Complaint should be dismissed as to the purported claims by Gigi Group, LLC because Gigi has no privity with the Defendant. The Engagement Letter (NYSCEF Doc. 10), on which the Breach of Contract claim is based, purports to be entered into by and between Plaintiff Urban and the Defendant. Gigi Group, LLC is not a party to that Agreement. Further, the Engagement Letter at ¶ 3(a) and (b) expressly provides that the compensation requirements are the personal responsibility of Plaintiff Urban. So even if Gigi Group, LLC, were somehow in privity with Defendant, it has no claim for payments that its co-Plaintiff’s personally paid. Since there is no privity between Gigi Group, LLC and the Defendant, any claim purportedly brought in the name of Gigi Group, LLC must be dismissed and with prejudice. The Claim is brought for the wrong Claim – The Amended Complaint seeks relief under a theory that the Defendant breached a contract. And despite there being no issue raised as to the validity of the contract, the Amended Complaint seeks relief in the alternative under a theory of unjust enrichment. The First Appellate Division has long held and the Court of Appeals has confirmed that the existence of a valid and enforceable written 1 Consistent with Section 202.70(g) of the Uniform Rules for the Supreme and County Courts (Rules of Practice for the Commercial Division), Rule 6(c)(1) hyperlinks in this Memorandum of Law are to the NYSCEF Docket or LEXIS database, unless otherwise indicated. Page 5 of 17 5 of 17 FILED: NEW YORK COUNTY CLERK 08/01/2023 08:51 AM INDEX NO. 651660/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023 contract governing a particular subject matter ordinarily precludes recovery under equitable theories arising out of the same subject matter. Since the cause of action for Unjust Enrichment is duplicative of the claim for Breach of Contract, it must be dismissed and with prejudice. The Claim is brought for the wrong Relief – The Engagement Letter expressly indemnifies the Defendant from any liability to Plaintiff except for: (i.) gross negligence, bad faith or willful misconduct; (ii.) ultra vires actions; or (iii.) HCGV’s failure or refusal to comply with applicable law. The Amended Complaint does not and cannot allege any gross negligence, bad faith or willful misconduct. Nor does it allege any ultra vires action or failure or refusal to comply with the law. The Amended Complaint alleges that the Defendant failed to provide the agreed-upon services and – in contradiction to that alleged failure to provide services – that any services provided by Defendant were minimal, deficient, or otherwise not to the Plaintiffs’ benefit, Amended Complaint at ¶¶ 6-7. Whichever of those two contradictory claims are true, they cannot make the Defendant liable as provided under the Indemnification clause. Since the Engagement Letter expressly provides that “[u]nder no circumstances” would the Defendant be liable for any alleged failure provide the services (or if the services provided were minimal, deficient or otherwise not to Plaintiffs’ benefit) the claims must be dismissed with prejudice. Further – to the extent that a non-indemnified claim is alleged, the documentary evidence conclusively shows that services were provided, and that the provided services were far from minimal, deficient and not to Plaintiffs’ benefit. This was admitted by the Plaintiffs in writing and confirmed in deed by their continued monthly payments to the Defendant without complain about the progress of the project. Page 6 of 17 6 of 17 FILED: NEW YORK COUNTY CLERK 08/01/2023 08:51 AM INDEX NO. 651660/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023 The documentary evidence also shows that the Defendant willingly and knowingly continued voluntarily make payments for services actually received, rendering any claim moot under the voluntary payments doctrine. Since the documentary evidence conclusively disproves the Plaintiffs’ claims, they must be dismissed with prejudice. For these reasons and those more fully explored in this Memorandum of Law, the Defendant respectfully submits that the Amended Complaint must be dismissed and with prejudice.2 IV. FACTUAL AND PROCEDURAL BACKGROUND Accepting as true the allegations in the Amended Complaint, See Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414 (2001) citing Tenuto v. Lederle Lab., 90 N.Y.2d 606, 609-610 (1997); Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994), in July 2021, the Plaintiff Ryan Urban (referred to here sometimes as “Urban”) entered into a contract with the Defendant Hudson Capital Group Ventures, LLC (referred to here sometimes as “Hudson” or “Defendant”), Amended Complaint at ¶ 4 and Exhibit A. To be precise, while the Amended Complaint, claims that the contract was entered into between “PlaintiffS and Hudson” and that “PlaintiffS retained Hudson”, Amended Complaint at ¶ 4, the Engagement Letter itself “confirm[s] the arrangement under which Hudson [] has been engaged by Ryan Urban . . . .” Engagement Letter at Preamble. 2 All this is submitted without prejudice to the Defendant’s counterclaim for indemnification for their legal fees in defending this claim as provided under the Engagement Letter,¶ 6, Second Paragraph. Page 7 of 17 7 of 17 FILED: NEW YORK COUNTY CLERK 08/01/2023 08:51 AM INDEX NO. 651660/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023 In other words: the Engagement Letter, which is incorporated by reference in the Amended Complaint, shows that the sole relationship here was between Urban and Hudson. Gigi Group, LLC is simply not in the mix and the Court need not accept as true an allegation blatantly contradicted by the Plaintiff’s own documentary evidence. The Engagement Letter provides that Hudson would provide various advisory services in support of project to develop a new restaurant and nightclub at 138 Bowery, known by the placeholder name: “Project Goldman Snacks”. For half a year, Hudson provided services and the Plaintiff voluntarily paid their monthly payment and graciously acknowledged the receipt of and the quality of the work product produced by the Defendant. See Mandel Affidavit in Support of Motion to Dismiss at ¶ 6 and Exhibit G. In late 2022, the Parties had a falling out and went their separate ways. The Plaintiffs docketed a Summons with Notice (NYSCEF Doc. 1) this Spring, which the Plaintiff served on the Secretary of State (NYSCEF Doc. 2) in April. Hudson appeared and demanded the Complaint (NYSCEF Doc. 5). Plaintiff filed a Complaint (NYSCEF Doc. 8) and then an Amended Complaint with an Exhibit (NYSCEF Doc. 9-10). The pleading at issue in this Motion to Dismiss is the Amended Complaint, a complete, true and accurate copy of which is annexed as Exhibit A to the Gottesman Affirmation in Support. In their Amended Complaint, the Plaintiffs allege that Hudson “failed to provide the advisory and capital raising services” and “any services that were provided by Hudson were minimal, deficient, and were otherwise not to Plaintiffs’ benefit.” Amended Complaint at ¶¶ 6-7. These factual allegations belied by the documentary record. Page 8 of 17 8 of 17 FILED: NEW YORK COUNTY CLERK 08/01/2023 08:51 AM INDEX NO. 651660/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023 On this basis, the Plaintiff seeks recovery of one hundred and twenty-five thousand dollars ($125,000.00) for Breach of Contract, Amended Complaint at ¶¶ 1-11, and Unjust Enrichment, Amended Complaint at ¶¶ 12-15. Defendant’s time to Answer having been extended until August 1, 2023, See Stipulation (NYSCEF Doc. 11), the Defendant now respectfully moves to Dismiss the Amended Complaint with Prejudice. V. ARGUMENT: A. Gigi Group, LLC is not in Privity with the Defendant and therefore has no Claim against the Defendant Under Leon v. Martinez, 84 N.Y.2d 83 (1994) the question is not whether the Plaintiff feels aggrieved but whether “the facts as alleged fit within any cognizable legal theory” Leon, Id. at 87-88 citing Morone v. Morone, 50 N.Y.2d 481, 484 (1980); Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634 (1976). However “[a] complaint ‘cannot be vague and conclusory’, and ‘[b]are legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true.” Consolidated Rest. Operations, Inc. v. Westport Ins. Corp., 205 A.D.3d 76, 86 (1st Dep’t 2022)(alterations and quotations in original) citing Parola, Gross & Marino, P.C. v. Susskind, 43 A.D.3d 1020, 1021-22 (2d Dep’t 2007) and Phillips v. Trommel Constr., 101 A.D.3d 1097, 1098 (2d Dep’t 2012). The factual and/or legal claim that Gigi Group, LLC is party to a contract with the Defendant is belied by record. The only contract at issue – the Engagement Letter – is expressly between Urban, personally, and the Defendant. Gigi Group, LLC is not a party to the contract and is not in privity with the Defendant. A claim for breach of contract requires that the Parties actually be a party to a contract. The First Department for example Page 9 of 17 9 of 17 FILED: NEW YORK COUNTY CLERK 08/01/2023 08:51 AM INDEX NO. 651660/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023 held that “[a]bsent privity of contract between plaintiff [] and defendants [], defendants are entitled to summary judgment dismissing the first cause of action for breach of contract.” Ivan Mogull Music Corp. v. Madison-59th Street Corp., 162 A.D.2d 336, 337 (1st Dep’t 1990). “It is well settled that a court may not, under the guise of interpretation, fashion a new contract for the parties by adding or excising terms and conditions which would contradict the clearly expressed language of the contract.” Republic Nat'l Bank of N.Y. v. Olshin Woolen Co., 304 A.D.2d 401, 402 (1st Dep’t 2003) citing Rodolitz v. Neptune Paper Products, Inc., 22 N.Y.2d 383, 386-87 (1968); Evans v. Famous Music Corp., 302 A.D.2d 216 (1st Dep’t 2003). To summarize: Since Gigi Group, LLC is not in privity with the Defendant, it has no standing to bring a claim for Breach of Contract, it has alleged no claim against the Defendant, and it cannot allege any claim against the Defendant. Accordingly, any claim in the Amended Complaint purportedly brought in the name of Gigi Group LLC must be dismissed and with prejudice. To the extent that the Plaintiffs may argue that Gigi Group, LLC is a third party beneficiary to the contract, the Plaintiffs would have had to plausibly allege: “(1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [its] benefit, and (3) that the benefit to [it] is sufficiently immediate . . . to indicate the assumption by the contracting parties of a duty to compensate [it] if the benefit is lost.” Page 10 of 17 10 of 17 FILED: NEW YORK COUNTY CLERK 08/01/2023 08:51 AM INDEX NO. 651660/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023 Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182 (2011) (alterations in original) citing Mendel v. Henry Phipps Plaza W., Inc., 6 N.Y.3d 783, 786 (2006). At no time does the Amended Complaint allege that the Engagement Letter was intended for the benefit of Gigi Group, LLC. At no time does the Amended Complaint allege that the benefit to Gigi Group, LLC was sufficiently immediate to indicate the assumption by the Defendant of a duty to compensate Gigi Group, LLC if the benefit was lost. It would be unfair to spring on the Defendant’s liability to an unknown party that is a stranger to the contract absent some allegations that there was some express assumption of liability as to Gigi Group, LLC by the Defendant. For these reasons, Hudson respectfully submits that any claim in the name of Gigi Group, LLC must be dismissed and with prejudice. B. The claim for Unjust Enrichment is duplicative of the Claim for Breach of Contract The Court of Appeal confirmed that: “The existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter.” Clark- Fitzpatrick, Inc. v. Long Island R. Co., 70 N.Y.2d 382, 388 (1987) citing Blanchard v. Blanchard, 201 N.Y. 134, 94 N.E. 630 (1911). Further, “[a]n unjust enrichment claim is not available where it simply duplicates, or replaces a conventional contract or tort claim.” Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790-91 (2012) citing Clark Fitzpatrick, Inc., and collecting cases. Page 11 of 17 11 of 17 FILED: NEW YORK COUNTY CLERK 08/01/2023 08:51 AM INDEX NO. 651660/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023 The Second Cause of Action in the Amended Complaint incorporates by reference all the allegations made in First Cause of Action, Amended Complaint at ¶ 12. Other than a rehearsal of the elements of Unjust Enrichment, there are no claims independent of the funds that the Plaintiff admits were paid pursuant to the contract. For these reasons, Hudson respectfully submits that the Cause of Action for Unjust Enrichment must be dismissed and with prejudice. C. The Amended Complaint fails to Allege a Claim for Breach of Contract As cited above “factual claims [in a pleading] which are flatly contradicted by the record are not presumed to be true [for purposes of a Motion to Dismiss].” Consolidated Rest. Operations, Inc., 205 A.D.3d at 86. In this case, the Engagement Letter shows that the Parties negotiated and agreed to a highly idiosyncratic indemnification clause that absolved HCGV from liability arising from the services they would provide Plaintiff. It provided: “Under no circumstances shall HCGV, in the performance of this Agreement, be liable to Ryan or any other person for any act or omission of HCGV, unless such liability is due to (a) HCGV's gross negligence, bad faith or willful misconduct, b) actions taken by HCGV outside the scope of services under this Agreement, or (c) HCGV's failure or refusal to comply with applicable law with respect to this Agreement or the services in any manner or with HCGV's obligations under this Agreement. Engagement Letter at ¶ 6, First Paragraph. Therefore, on its face, the Amended Complaint’s allegations about the services being “minimal, deficient, and [] otherwise not to Plaintiffs’ benefit”, Amended Complaint ¶ 7, and/or not provided at all, Amended Complaint ¶ 6, are simply not Page 12 of 17 12 of 17 FILED: NEW YORK COUNTY CLERK 08/01/2023 08:51 AM INDEX NO. 651660/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023 actionable. The Parties agreed that liability cannot be imposed on the Defendant except under three specific circumstances none of which are alleged. Admittedly, the indemnification clause included in the Engagement Letter is extremely broad. But that was the Parties’ decision to negotiate for the scope of the indemnification clause. The right to indemnification “depends upon the specific language of the contract”, Ging v. F.J. Sciame Constr. Co., Inc., 193 A.D.3d 415, 417 (1st Dep’t 2021)(collecting cases). In this case, the Parties expressly agreed that Defendant would face no liability arising from this engagement in the absence of gross negligence, bad faith, willful misconduct, ultra vires activity, or failure/refusal to comply with the law. The Amended Complaint makes no allegation that would fit into any exception from the broad immunity clause and therefore the Causes of Action must be dismissed with prejudice. What’s more, the documentary evidence introduced with this Motion to Dismiss by the Defendant and discussed below shows that as a factual matter, the services were provided to the full satisfaction of the Plaintiff. Which is why the Plaintiff voluntarily paid the Defendant monthly without complaint for nearly half a year. For these reasons, Hudson respectfully submits that the Engagement Letter fully immunizes the Defendant and the Causes of Action for Breach of Contract and Unjust Enrichment must be dismissed and with prejudice. D. The Voluntary Payment Doctrine Bars Plaintiffs’ Claims In New York, the “common law doctrine [of voluntary payment] bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law.” Dillon v. U-A Columbia Cablevision Page 13 of 17 13 of 17 FILED: NEW YORK COUNTY CLERK 08/01/2023 08:51 AM INDEX NO. 651660/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023 of Westchester, Inc., 100 N.Y.2d 525, 526 (2003) citing Gimbel Bros. Inc., v. Brook Shopping Centers, Inc., 118 A.D.2d 532, 535-56 (2d Dep’t 1986). It also bars recovery of voluntary payments under a theory of unjust enrichment, See, e.g., Lam Pearl St. Hotel, LLC v. Golden Pearl Constr. LLC, 200 A.D.3d 521, 522 (1st Dep’t 2021)(“unjust enrichment claim was barred by the voluntary payments doctrine”). The Amended Complaint admits that the Plaintiffs voluntarily made payments to the Defendant in accordance with the terms of the contract, which is to say on a monthly basis, See Amended Complaint at ¶ 5; Engagement Letter at ¶ 3(a). The documentary evidence further confirms that the payments were voluntarily made on a monthly basis, for which Plaintiff Urban “thanked” the Defendant as late as October 2021. The Amended Complaint makes no allegation of any fraud by the Defendant or any mistake of material fact or law on the Plaintiff’s part which would have triggered the wrongful payments. For these reasons, Hudson respectfully submits that the Voluntary Payment doctrine bars any cause of action for Breach of Contract or Unjust Enrichment, and the Amended Complaint must be dismissed and with prejudice. E. Plaintiffs’ Allegations are Belied by the Documentary Evidence The Breach of Contract claim is based on two contradictory claims. The Amended Complaint makes the following two inconsistent factual allegations: “6. Hudson breached the parties’ contract/Engagement Letter by failing to provide the advisory and capital raises services as agreed upon. “7. Any services that were provided by Hudson were minimal, deficient, and were otherwise not to Plaintiffs’ benefit.” Page 14 of 17 14 of 17 FILED: NEW YORK COUNTY CLERK 08/01/2023 08:51 AM INDEX NO. 651660/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023 The documentary evidence conclusively establishes that the Defendant did provide the advisory and capital services. See Mandel Affidavit in Support at ¶ 5 and Exhibits A-E; and G, showing among other things, the substantial amount of services that Defendant provided Plaintiff and how Urban “thanked” the Defendant for their work product. That same documentary conclusively disproves any allegation that the services were “minimal, deficient, and were otherwise not to Plaintiffs’ benefit” – not that any of these alleged characterizations of the alleged breach would substantiate a claim that the Defendant should be liable for returning the funds they were fairly paid. For these reasons, Hudson respectfully submits that the documentary evidence conclusively disproves any allegation Payment doctrine bars any cause of action for Breach of Contract or Unjust Enrichment, and the Amended Complaint must be dismissed and with prejudice. [Remainder of Page Intentionally Left Blank] Page 15 of 17 15 of 17 FILED: NEW YORK COUNTY CLERK 08/01/2023 08:51 AM INDEX NO. 651660/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023 VI. CONCLUSION For the reasons described above, the Defendant respectfully submits that the Amended Complaint must be Dismissed with Prejudice. DATED: July 31, 2023 RESPECTFULLY SUBMITTED, By: Baruch S. Gottesman, Esq. New York Bar No. 4480539 GOTTESMAN LEGAL PLLC 11 Broadway, Suite 615 New York, NY 10004 Phone: (212) 401-6910 Fax: (212) 859-7307 bg@gottesmanlegal.com Attorney for Defendant Served via NYSCEF on all appearing parties Page 16 of 17 16 of 17 FILED: NEW YORK COUNTY CLERK 08/01/2023 08:51 AM INDEX NO. 651660/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 08/01/2023 Section 202.8-b Certificate of Counsel (Length of Papers) I certify that this Memorandum of Law has been prepared in Microsoft® Word for Mac Version 16.16.27. Body in Times New Roman, 12 font; Footnotes in Times New Roman 10 font. This Memorandum of Law 2,817 words excluding the caption, table of contents, table of authorities, and signature block. Baruch S. Gottesman, Esq. Page 17 of 17 17 of 17