Defendants move for an order pursuant to CPLR 3211(a)(7) dismissing the complaint for failure to state a cause of action.

In this action, plaintiffs are seeking to recover damages of approximately $200,000 for commissions allegedly owed to them by defendants pursuant to an agency and management agreement entered into by the parties in September 1985. Plaintiffs also seek to recover $6,500 for a loan defendants allegedly failed to repay. The pertinent allegations of the complaint (defendants' exhibit A) can be summarized as follows: plaintiffs are engaged in the business of "personal [*2]management" for performers in the entertainment industry including defendant Savion Glover ("Glover"), who is an internationally known performer in the fields of dance, theater, and film (id., ¶¶ 11 and 12); in September 1985 plaintiffs Carol Davis and Eastern Talent Alliance and defendants Savion Glover and Savion Glover Productions, Inc. entered into an "agency and management agreement" pursuant to which plaintiffs secured considerable employment for Glover over the next 21 years ^[FN1] for which defendants failed to pay a commission to plaintiffs as required by the parties' agreement (id., ¶¶ 13, 14 and 18). The complaint alleges that, as early as October 2005 and continuing to the present, defendants have refused to compensate plaintiffs according to their agreement. The complaint asserts four causes of action: breach of contract; unjust enrichment; quantum meruit; and an accounting.

The standards applicable to a motion to dismiss a complaint for failure to state a cause of action are comprehensively set forth in Khan v Newsweek, Inc. 160 AD2d 425, 426 (1st Dept 1990):

A motion to dismiss for failure to state a cause of action assumes the truth of the material allegations and everything reasonably to be implied therefrom. (see, Foley v D'Agostino, 21 AD2d 60, 65.) In determining such a motion, it is not the function of the court to evaluate the merits of the case (Carbillano v Ross, 108 AD2d 776, 777) or express an opinion as to plaintiff's ability to ultimately establish the truth of the averments. (219 Broadway Corp. v Alexander's, Inc., 46 NY2d 506, 509.) Rather, the plaintiff must be "given the benefit of every possible favorable inference" (Rovello v Orofino Realty Co., 40 NY2d 633, 634) and the motion to dismiss will fail if, "from [the pleading's] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (Guggenheimer v Ginzburg, 43 NY2d 268, 275)

Defendants' motion is based on their contention that the complaint fails to state a cause of

action because plaintiffs failed to plead that they were a licensed employment agency. Section 172 of the General Business Law, relied on by defendants, provides in pertinent part that "[n]o person shall open, keep, maintain, own, operate or carry on any employment agency unless such person shall have first procured a license therefor as provided in this article." The license requirement applies to theatrical employment agencies (see GBL § 171[2][d]) unless such agencies are in "the business of managing such [theatrical] entertainments, exhibits, exhibitions or performances, or the artists or attractions constituting the same, where such business only incidentally involves the seeking of employment therefor" (GBL § 171[8]).

The instant complaint alleges, inter alia, that "[p]laintiffs are engaged in the business of personal management for professionals in connection with the entertainment industry, which entails in part, being the exclusive agent and manager for Glover" (see defendants' exhibit A, ¶ 11). In support of dismissal, defendants do not submit a copy of the subject September 1985 agency and management agreement. Rather, they cite paragraph 14 of the complaint, which states that plaintiffs "secured considerable commissionable employment . . . in the areas of dance, theater, film and television" for defendants (id. ¶ 14). Defendants essentially contend that the considerable employment that plaintiffs allegedly obtained for defendants leads to the conclusion that seeking employment for defendants was more than incidental to its business.

In the absence of the alleged agreement, the identity of the contract parties, and the scope of [*3]their relationship, cannot be determined. Plaintiffs submit a copy of a license issued from the New York City Department of Consumer Affairs to plaintiff Eastern Talent Alliance, Inc. and a printout which plaintiffs claim indicates that Eastern Talent Alliance, Inc. was licensed until 2004. However, these documents are irrelevant. The theatrical employment agency license appears to have expired as of May 1, 2000, and it is not clear that the printout is a business record from the Department of Consumer Affairs. Assuming, for argument sake, that Eastern Alliance, Inc. remained licensed as a theatrical employment agency until 2004, which plaintiffs claim, the alleged breaches of the parties' alleged agreement began in October 2005 (id. ¶ 21). The specific engagements that pertain to the alleged breach of contract are performances "in the Joyce Theater, Classical Savion in Japan, Bogota, Colombia, the JVC' Jazz Festival and the fall and spring 2006-2007 Classic Savion Tour" (id. ¶ 22).

Nevertheless, defendants' motion is denied. Defendants take the allegations of paragraph 14 out of context, because the "considerable employment" refers to employment allegedly secured spanning a period of 21 years. As discussed above, defendants allegedly breached the parties' alleged agreement starting in October 2005 and thereafter. On the allegations alone, it cannot be determined, as a matter of law, that plaintiffs' role in seeking employment for defendants was more than incidental to their business, which allegedly included acting as manager for defendants. The question of whether plaintiffs should be considered a licensed theatrical agency requires discovery as to plaintiffs' business activities and employment efforts with respect to defendants.

Finally, defendants' reliance on Friedkin v Harry Walker, Inc., 90 Misc 2d 680 (Civ Ct, NY County, 1977) and Pine v Laine, 36 AD2d 924 (1st Dept 1971) is misplaced because, inter alia, those cases involved motions for summary judgment which focus on the question of whether a factual issue exists (see CPLR 3212[b]; Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]) and have little, if anything, to do with the sufficiency of a pleading.

Accordingly, it is hereby

ORDERED that defendants' motion to dismiss is denied.

Defendants are directed to serve their answer within 20 days of service of this order with notice of entry. The parties are directed to appear for a preliminary conference on April 30, 2009 at 9:30 AM in IAS Part 7, 111 Centre St Rm 949, New York, New York.

This constitutes the decision and order of the Court. Copies to counsel.