Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered March 31, 2006. The order denied defendants' motion to dismiss the complaint.

Order modified by providing that defendants' motion to dismiss the complaint is granted to the extent of dismissing the first and third causes of action; as so modified, affirmed without costs.
On September 2, 2004, plaintiff entered into a design agreement with defendant Rochelle Kalisch, an employee of defendant Regency Kitchens, Inc., whereby Ms. Kalisch would design and draw up plans for a kitchen remodeling project, which was to include, inter alia, conceptual plans with different options for space layouts, floor plans and elevations, and recommendations for appliances, lighting, and furniture placement. The agreement specifically stated that "[t]he non refundable design retainer is $5,000 and is applicable toward the purchase of kitchen cabinets only." Plaintiff ultimately learned that the proposed kitchen cabinetry was made of composite wood, and not solid wood, and sought the return of her $5,000 deposit.
Plaintiff commenced this action against defendants, asserting three causes of action in her complaint: unjust enrichment, fraud in the inducement, and violation of General Business Law § 349. Defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7). The court below denied the motion.
Where documentary evidence definitively contradicts a plaintiff's factual allegations and conclusively disposes of a plaintiff's claim, dismissal pursuant to CPLR 3211 (a) (1) is warranted (see Berardino v Ochlan, 2 AD3d 556 [2003]). Since the design agreement proffered by [*2]defendants in support of their motion conclusively established a defense to plaintiff's first cause of action as a matter of law, the first cause of action should have been dismissed. Although plaintiff claimed that she sought relief under a theory of unjust enrichment, we note that a party may not recover based on a theory of unjust enrichment where there is a valid express agreement between the parties which explicitly covers the same subject matter for which the relief sounding in quasi-contract is sought (see Chadirjian v Kanian, 123 AD2d 596 [1986]; see also
Moore v Microsoft Corp., 293 AD2d 587, 588 [2002]; Smith v Pagano, 154 AD2d 586 [1989]).
With respect to plaintiff's second cause of action, in view of the lenient standard for reviewing the sufficiency of a complaint, i.e., that plaintiff's pleadings must be accorded every favorable inference (see Leon v Martinez, 84 NY2d 83 [1994]), the complaint and accompanying affidavit, although inartfully drafted, adequately alleged for pleading survival purposes a cause of action for fraudulent inducement.
Since plaintiff's complaint and other submissions in opposition to defendants' motion alleged nothing more than defendants' alleged violation of General Business Law § 349, and contained no factual allegations to establish a cause of action under the statute, defendants' motion to dismiss the third cause of action should have been granted.
Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: April 03, 2008