The following papers read on this motion:

Notice of Motion, Affirmation, and ExhibitsX

Notice of Cross-Motion, Affirmation, and ExhibitsX

Reply Affirmation in Support of Motion to Dismiss and

in Opposition to Cross-MotionX

Reply Affirmation in Support of Cross-MotionX

Motion pursuant to CPLR 3211(a)(7) by plaintiff Long Island Minimally Invasive Surgery, P.C. (Long Island) to dismiss the first, fourth, seventh, ninth and tenth affirmative defenses, and the first, third, fifth and sixth counterclaims asserted in defendants' answer is granted only to the extent that the first, ninth and tenth affirmative defenses and the first, fifth and sixth counterclaims are hereby dismissed.

Cross motion pursuant to CPLR 1003 by defendant Outsource Marketing Solutions, Inc. (Outsource) to drop defendant Bruce Safran as a party and to dismiss the complaint as to both defendants pursuant to CPLR 3211(a)(3) and (a)(7) based on lack of standing and lack of a contract is denied. [*2]

In this action, plaintiff Long Island seeks to recover damages, i.e., loss of substantial business opportunities, predicated on defendants' alleged breach of both an oral agreement to create a new website for plaintiff's professional practice of bariatric surgery and a written agreement to refund the $10,000 fee defendants received from plaintiff in the event the website was not completed on or before January 31, 2010. According to the complaint, defendants failed to timely complete the project and intentionally and maliciously disabled plaintiff's existing website so that plaintiff's patients and potential patients were unable to access same. The court notes, in this regard, that the allegations of the second cause of action of the complaint as to defendants' alleged "tortious interference" with its existing website would not constitute a viable tortious interference with contract claim as the required elements, i.e., the existence of a valid contract between plaintiff and a third party, defendants' knowledge of that contract, defendants' intentional procurement of the third party's breach of the contract without justification and damages resulting therefrom, are not present. Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 [1996]. However, since this issue was not

raised by the moving papers nor briefed by the parties, it is premature for the Court to rule on the nature of and viability of this cause of action.

In their answer, defendants deny most of the allegations of the complaint and assert ten affirmative defenses and six counterclaims, the majority of which plaintiff argues lack merit and have nothing to do with the action. In light of the foregoing, plaintiffs have moved to dismiss the affirmative defenses alleging lack of standing (first); timely completion of the website (fourth); failure to state a cause of action (seventh); speculative damages (ninth); and overreaching and unconscionable acts by plaintiff: and the first, third, fifth and sixth counterclaims alleging, respectively, unconscionability of parties' agreement; failure to pay for services rendered; improper billing for surgery performed on defendant Bruce Safran and refusal to render medical treatment to defendant Bruce Safran after the contract dispute arose.

In response defendants have cross moved to drop defendant Bruce Safran, in his individual capacity, as a party to the action and to dismiss the action as to both defendants based on the lack of privity of contract between plaintiff Long Island and defendants and plaintiff's failure to state a cause of action.

As an initial matter, the court finds no basis to dismiss the action on the ground that plaintiff lacks standing to maintain the action because the contract at issue was between New York Bariatric Group and defendant Outsource. In short, [*3]defendants argue that since plaintiff Long Island is not a party to the contract it lacks standing to maintain this action against defendant Outsource. The contention lacks merit.

While liability for breach of contract does not lie absent proof of a contractual relationship or privity between the parties (CDJ Bldrs. Corp. v Hudson Group Constr. Corp., 67 AD3d 720, 722 [2nd Dept. 2009]), defendants admit that defendant Outsource and New York Bariatric Group entered into a contract for the completion of a new "e" commerce website for New York Bariatric Group to be completed by December 31, 2010.

Plaintiff Long Island was clearly identified in defendants' answer as "doing business as New York Bariatric Group." Plaintiff's commencement of the action in the name of the professional corporation, and not its "doing business as" name, does not implicate a standing or privity issue nor does it warrant dismissal. Defendants were well aware from the outset of the litigation of plaintiff's relationship to New York Bariatric Group. At worst, the designation of Long Island as plaintiff may be considered a misnomer. Mistakes or irregularities not affecting a substantial right of a party are not fatal. Mistakes relating to the name of a party involving a misnomer or misdescription of the legal status of a party fall within the category of irregularities which are subject to correction by amendment particularly where the other party is not prejudiced, and was aware from the outset that a misdescription was involved. Covino v Alside Aluminum Supply Co., 42 AD2d 77, 79 [4th Dept. 1973]; see also Cohen v Ortho Net New York IPA, Inc., 19 AD3d 261 [1st Dept. 2005]; Cutting Edge v Santora, 4 AD3d 867, 868 [4th Dept. 2004].

Courts have held that captions should be liberally construed and defects in form disregarded unless demonstratively prejudicial or timely objection has been made. Tilden Dev. Corp. v Nicaj, 49 AD3d 629, 630 [2nd Dept. 2008]; First Wis. Trust Co. v Hakimian, 237 AD2d 249 [2nd Dept. 1997]. CPLR 2001 which authorizes courts to correct any mistake or irregularity not affecting the merits or a substantial right of a party at any stage of an action comports which "an enlightened system of civil procedure that eschews the elevation of form over substance." Alexander, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR 2001.

Accepting the allegations of the complaint as true, according the plaintiff the benefit of every favorable inference, and determining only whether the facts alleged fall within any cognizable legal theory (McCarthy v Young, 57 AD3d 955 [2nd Dept. 2008]), the complaint sets forth a cognizable cause of action for breach [*4]of contract against defendant Outsource and defendant Safran individually.

With respect to defendants' request pursuant to CPLR 1003 to drop defendant Bruce Safran as a party, defendants correctly argue that a corporate officer who signs an agreement in his corporate capacity will not be held liable on a contract unless he personally binds himself to the agreement. Metropolitan Switch Bd. Co., Inc. v Amici Assoc., Inc., 20 AD3d 455 [2nd Dept. 2005]. Corporate officers acting in their corporate capacity are protected from personal liability. Here, the facts demonstrate that, although the written agreement at issue dated October 9, 2009 was signed by defendant Bruce Safran as president of defendant Outsource, the oral agreement regarding creation of a website as alleged by plaintiff, and referenced in a series of e-mail communications, was between plaintiff and defendant Bruce Safran individually. As such, defendant Bruce Safran is a necessary party to the action. Defendants' cross motion, therefore, to dismiss the complaint pursuant to CPLR 3211(a)(3) and (a)(7), and to drop defendant Bruce Safran as a party pursuant to CPLR 1003, is denied.

Pursuant to CPLR 3211(b), a party may move for judgment dismissing one or more defenses on the ground that a defense is not stated or has no merit. Greco v Christoffersen, 70 AD3d 769, 771 [2nd Dept. 2010]. When moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is without merit as a matter of law because it either does not apply under the factual circumstances of the case or fails to state a defense. Bank of Am., N.A. v 414 Midland Ave. Assoc., LLC, 78 AD3d 746, 748 [2nd Dept. 2010]; Vita v New York Waste Servs., LLC, 34 AD3d 559 [2nd Dept. 2006]. In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleading in favor of the party asserting the defense and give that party the benefit of every reasonable inference. Courthouse Corporate Ctr. LLC v Schulman, 74 AD3d 725, 727 [2nd Dept. 2010]. An affirmative defense should not be dismissed if there is any doubt as to its availability. Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2nd Dept. 2008]. Legal conclusions and facts contradicted by the record, however, are not entitled to the presumption of truth.

With respect to plaintiff's motion to dismiss the first, fourth, seventh, ninth and tenth affirmative defenses asserted in defendants' answer, the court finds as follows:

the first affirmative defense that plaintiff lacks standing to maintain this action is untenable for the reasons previously stated; [*5]

to the extent that the fourth affirmative defense, i.e., timely completion of the website, poses a factual issue which goes to the essence of plaintiff's breach of contract claim, it cannot be dismissed as a matter of law and must be determined at trial;

the seventh affirmative defense based upon a failure to state a valid cause of action is viable under Butler v Catinella, 58 AD3d 145 [2008];

the ninth and tenth affirmative defenses alleging respectively that plaintiff's damages are speculative and that plaintiff's breach of contract claim is barred by it's own unconscionable acts, are pled as conclusions of law without any factual support. They are, therefore, insufficient and must be dismissed.

In general, an unconscionable contract has been defined as one which is so grossly unreasonable as to be unenforceable because of the absence of any meaningful choice on the part of all of the parties together with contract terms which are unreasonably favorable to the other party. King v Fox, 7 NY3d 181, 191 [2006]. A determination of unconscionability generally requires a showing that the contract was both procedurally and substantively unconscionable when made. The procedural element of unconscionability concerns the contract formation process and the alleged lack of meaningful choice. The substantive element involves the content of the contract itself. The determination of unconscionability is a matter of law for the court to decide. Simar Holding Corp. v GSC, 87AD3d 688, 690 [2nd Dept. 2011] (citations and internal quotations marks omitted).

Defendants' first counterclaim is deficient in that it fails to allege any of the elements of procedural unconscionability, i.e., use by plaintiff of high pressure tactics or deceptive language or the existence of unequal bargaining power — or substantive unconscionability, i.e., that one or more of the key terms of the contract are unreasonably favorably to plaintiff. As such, the first counterclaim must be dismissed.

The fifth and sixth counterclaims, which assert claims against plaintiff based on allegations that, after agreeing to accept insurance payment for surgery performed on defendant Bruce Safran, plaintiff billed said defendant for an additional $45,000 for medical fees, and allegedly refused to continue treating him after the dispute arose concerning the contract at issue, consist of conclusory statements unsupported by factual allegations. Even affording these counterclaims [*6]the benefit of every possible inference, without more, they fail to state a cause of action against plaintiff for which relief may be granted.

The fact that defendant Bruce Safran was billed for medical services rendered and/or that plaintiff refused to continue to treat him because of an unrelated contract dispute does not give rise to a viable claim for damages. Counterclaims consisting of conclusory statements unsupported by factual allegations are properly dismissed. Ashcraft Excavating Co., Inc. v Clark, 79 AD2d 722, 723 [3rd Dept. 1980] appeal den., 52 NY2d 705 [1981].

Accordingly, plaintiff Long Island's motion pursuant to CPLR 3211(a)(7) is granted to the extent that the first, ninth and tenth affirmative defenses, and the first, fifth and sixth counterclaims asserted in defendant's answer are hereby dismissed.

Cross motion by defendants Outsource and Bruce Safran pursuant to CPLR 1003 and CPLR 3211(a)(3) and (1)(7) is denied.

This constitutes the Decision and Order of the Court.

Dated: November 22, 2011

__________________________________________

Steven M. Jaeger, A.J.S.C.