Defendant Eli Noy has moved for an order pursuant to CPLR 3211(a)(3), (7), and (8) dismissing the complaint against him.

The plaintiffs allege the following: Plaintiff Mohammad Chouhan, a real estate broker, is the sole owner of plaintiff Elite Homes Enterprises, Ltd., a corporation engaged in real estate transactions. In or about April, 2004, plaintiff Elite hired defendant Noy as its bookkeeper, giving him the authority to sign checks. Plaintiff Chouhan deposited funds into Elite's bank accounts, which defendant Noy thereafter converted. Moreover, defendant Noy controls defendant 101 Development Group, LLC, defendant NCF Equities, LLC and defendant J&S Builders, Inc. Beginning in April, 2004, plaintiff Chouhan engaged in several real estate transactions entitling him to the payment of substantial commissions. On July 26, 2005, plaintiff Chouhan represented defendant 101 Development in its purchase of property known as 71-13 60th Lane, Queens, New York, but he has not been paid $65,000 in commissions. In December, 2005, plaintiff Chouhan represented defendant NCF in the purchase of property known as 41-17 Crescent Street, Long Island City, New York, but he has not been paid $119,500.00 in commissions.

On the other hand, defendant Noy alleges that he alone owns plaintiff Elite. In or about June, 2005, he allegedly reached an oral agreement with plaintiff Chouhan whereby the latter would have a 50% interest in Elite, but Chouhan never received stock in the company. In or about February, 2006, Chouhan stopped paying his part of the expense of running Elite and left his employment with the company. Defendant Noy alleges that the plaintiff is not entitled to commissions for the sale of any property.

The plaintiffs began this action on September 19, 2006 by the filing of a summons and a [*2]complaint. The first cause of action is against defendant 101 Development Group and defendant NCF for breach of contract to pay real estate brokerage commissions. The second through fifth causes of action are asserted against defendant Noy for conversion, breach of fiduciary duty, breach of contract, and unjust enrichment.

That branch of the motion which is for an order dismissing the complaint against defendant Noy pursuant to CPLR 3211(a)(8) for failure to make proper service is denied. The defendant cited no authority for the proposition that the service of an unsigned complaint lacking an index number constitutes a jurisdictional defect. In any event, the plaintiff may cure the defect by serving an amended pleading. (See, CPLR 3025; Holchendler v We Transport, Inc., 292 AD2d 568; Miller v General Motors Corp., 99 AD2d 454, affd, 64 NY2d 1081.)

That branch of the motion which is for an order pursuant, to CPLR 3211(a)(3) dismissing the complaint against defendant Noy for lack of standing is denied. The conflicting allegations of the parties concerning whether plaintiff Chouhan has an ownership interest in plaintiff Elite have created issues of fact and credibility which cannot be resolved here. (See, Dayan v Yurkowski, 238 AD2d 541; T&L Redemption Center Corp. v Phoenix Beverages, Inc., 238 AD2d 504; First New York Realty Co., Inc. v DeSetto, 237 AD2d 219.)

That branch of the motion which is for an order pursuant to CPLR 3211(a)(7) dismissing the complaint against defendant Noy for failure to state a cause of action is denied. "It is well-settled that on a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the pleading is to be liberally construed, accepting all the facts alleged in the complaint to be true and according the plaintiff the benefit of every possible favorable inference ***." (Jacobs v Macy's East, Inc., 262 AD2d 607, 608; Leon v Martinez, 84 NY2d 83.) The court does not determine the merits of a cause of action on a CPLR 3211(a)(7) motion (see, Stukuls v State of New York, 42 NY2d 272; Jacobs v Macy's East Inc., supra), and the court will not examine affidavits submitted on a CPLR 3211(a)(7) motion for the purpose of determining whether there is evidentiary support for the pleading. (See, Rovello v Orofino Realty Co., Inc., 40 NY2d 633.) The plaintiff may submit affidavits and evidentiary material on a CPLR 3211(a)(7) motion for the limited purpose of correcting defects in the complaint. (See, Rovello v Orofino Realty Co., Inc., supra; Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159.) In the case at bar, the complaint adequately states causes of action for, inter alia, conversion (see, State v Seventh Regiment Fund, Inc., 98 NY2d 249; Citipostal, Inc. v Unistar Leasing, 283 AD2d 916; Meese v Miller, 79 AD2d 237) and breach of contract. (See, Furia v Furia, 116 AD2d 694; WorldCom, Inc. v Sandoval, 182 Misc 2d 1021; Lehmann v Lehmann, 182 Misc 2d 22.) Defendant Noy has improperly sought to reach the merits of the complaint on this mere CPLR 3211(a)(7) motion. (See, Stukuls v State of New York, supra; Jacobs v Macy's East Inc., supra.)

Accordingly, the motion is denied.

Short form order signed herewith.

J.S.C.