Upon the following papers numbered 1 to 1-4 read on this motion by defendants NFA and the OTSA-HOA; Notice of Motion/Order to Show Cause and supporting papers 1-2; Notice of Cross Motion and supporting papers; Answering papers3; Reply papers4; Other; (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that this motion (No.001) by defendants, NFA Associates, LLC and Olde Towne Southampton Homeowners Association, Inc., for an order dismissing the complaint served in this action to the extent it asserts claims against the moving defendants is considered under CPLR 3211(a)(1) and (a)(7) and is granted.

The plaintiffs commenced this action to recover a real brokers' commission allegedly earned by them in procuring the development of six lots in a planned, ten-lot subdivision of luxury homes by defendant John Keane and/or his companies. Recovery of money damages by the plaintiffs is sought from defendant, NFA Associates, LLC [hereinafter "NFA"] under theories of quantum meruit and/or unjust enrichment. No demand for recovery is advanced in the complaint against Southampton Homeowners Association, Inc., ["HOA"], as its joinder is described therein as one "for notice purposes only".

The plaintiffs assert that in August of 2012, they met and agreed to introduce, in exchange for a brokerage commission, the first named defendant, Olde Towne Southampton Associates, LLC, [hereinafter OTSA], the owner of seven undeveloped lots , numbered 4-10, in a premier Southampton subdivision, to defendant Kean, a well known and well respected developer and/or to his co-defendant companies, including defendant Olde Towne Development, LLC, one of the four corporate Kean entities named in the caption of this action. Prior to such meeting, defendant NFA had relinquished its member interest in OTSA under the terms of a June 25, 2012 redemption agreement in exchange for a deed conveying title from OTSA to NFA to Lot # 8 that was recorded in the office of the County Clerk on March 7, 2013.

In August of 2013, OTSA entered into a Master Development Agreement with defendant, Olde Towne Development, LLC, which covered only the lots then owned by OTSA, namely 4, 5, 6, 7, 9 and 10. According to the plaintiffs, the Master Development Agreement significantly enhanced the value of the development and the value of NFA's previously acquired Lot #8, even though Lot #8 was not subject to the Master Development Agreement. By the complaint served herein, the plaintiffs seek recovery from defendant NFA of the value of the plaintiffs' broker services which allegedly inured to the benefit of the NFA, even in the absence of an express brokerage agreement between it and the plaintiff, under theories of quantum meruit and/or unjust [*2]enrichment.

By the instant motion (#001), defendants NFA and HOA seek dismissal of the plaintiffs' claims against them pursuant to CPLR 3211(a)(1) and (a)(7). The motion is granted with respect to defendant HOA, as the plaintiffs did not oppose such application and the moving papers sufficiently demonstrated that the plaintiffs have not stated a legally sufficient claim against the HOA defendant. The motion is also granted with respect to defendant NFA for the reasons advanced below and the THIRD and FIFTH causes of action set forth in the complaint, which alone target defendant NFA, are dismissed.

In contrast, the legal standard to be applied in evaluating a motion to dismiss pursuant to CPLR 3211(a)(7) is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" (Marist College v Chazen Envtl. Serv., 84 AD3d 1181, 923 NYS2d 695 [2d Dept 2011], quoting Sokol v Leader, 74 AD3d 1180, 1180—1181, 904 NYS2d 153 [2d Dept 2010]). In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction and determine only whether the facts, as alleged, fit within any cognizable legal theory (see High Tides, LLC v DeMichele, 88 AD3d 954, 931 NYS2d 377 [2d Dept 2011]; Reiver v Burkhardt, Wexler & Hirschberg, LLP, 73 AD3d 1149, 901 NYS2d 690 [2d Dept 2010]). The test to be applied is "whether the complaint gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments" (Treeline 990 Stewart Partners, LLC v RAIT Atria, LLC, 107 AD3d 788, 967 NYS2d 119 [2d Dept 2013]; JP Morgan Chase v J.H. Elec. of NY, Inc., 69 AD3d 802, 803, 893 NYS2d 237 [2d Dept 2010]). In making such determination, the court must consider whether the complaint contains factual allegations as to each of the material elements of any cognizable claim and whether such allegations satisfy any express, specificity requirements imposed upon the pleading of a that particular claim by applicable statutes or rules (see East [*3]Hampton Union Free School Dist. v Sandpebble Bldrs., Inc., 66 AD3d 122, 884 NYS2d 94 [2d Dept 2009], aff'd 16 NY3D 775, 919 NYS2d 496 [2011]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19, 799 NYS2d 170 [2005]; Haberman v Zoning Bd. of Appeals of City of Long Beach, 94 AD3d 997, 942 NYS2d 571 [2d Dept 2012]). If the court can determine that the plaintiff is entitled to relief on any view of the facts alleged, its inquiry is complete and the complaint must be declared legally sufficient (see Symbol Tech. v Deloitte & Touche, LLP, 69 AD3d 191, 888 NYS2d 538 [2d Dept 2009]).

To succeed on a cause of action to recover in quantum meruit, the plaintiff must prove: (1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they were rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services (see Evans-Freke v Showcase Contr. Corp., 85 AD3d 961, 926 NYS2d 140 [2d Dept 2011]; Tesser v Allboro Equip. Co., 73 AD3d 1023, 904 NYS2d 701 [2d Dept 2010]). The absence of allegations of the acceptance of services by the person or party to whom they were rendered leaves the plaintiff with a legally insufficient claim (see Orchid Constr. Corp. v Gottbetter, 89 AD3d 708, 932 NYS2d 100 [2d Dept 2011]). In contrast, the recovery of damages for unjust enrichment rest upon the following elements: (1) that the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182, 919 NYS2d 465 [2011]; Lebovits v Bassman, 120 AD3d 1198, 992 NYS2d 316 [2d Dept 2014]). It is not enough to show that the defendant received a benefit (see Hansen & Co. v Everlast World's Boxing Headquarters, Corp., 296 AD2d 103, 744 NYS2d 384 [1st Dept 2002]), rather the plaintiff must identify the alleged benefit conferred and the equitable basis for returning it to state a legally sufficient claim for unjust enrichment (see Woods v 126 Riverside Dr. Corp., 64 AD3d 422, 882 NYS2d 106 [1st Dept 2009]). Moreover, while privity is not required, the plaintiff must demonstrate that the services were performed for the defendant (see Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 950 NYS2d 33 [2012]).

Here, the moving papers established that defendant NFA had no contract with plaintiffs and that Lot #8, with respect to which, NFA took title in March of 2013, was not subject to the subsequent Master Development Agreement between defendants OTSA and Olde Towne Development, LLC, upon which, the plaintiffs predicate their brokerage commission claims against the "defendants" to this action. There are no allegations of any meetings, agreements or understandings of any kind between NFA and the plaintiff in August of 2012 when OTSA and the plaintiffs' principals first met and allegedly agreed to retain the services of the plaintiffs to secure defendant as the developer of the lots owned by OTSA, which then included Lot# 8. However, Lot #8 was not included in the August 2013 Master Development Agreement as title to such lot had been transferred to NFA in March of 2013. Nor are there any allegations that NFA's status as a managing member of OTSA prior to the initial meeting between the plaintiffs and OTSA in August of 2012 subjects NFA to liability to the plaintiffs under theories of quantum meruit or unjust enrichment. The court thus finds that the plaintiffs failed to state legally sufficient claims for recovery from defendant NFA under theories of quantum meruit or unjust [*4]enrichment. Accordingly, defendant NFA is entitled to a dismissal, pursuant to CPLR 3211(a)(7), of the claims interposed against it namely, the Third and Fifth causes of action set forth in the complaint.

In view of the foregoing, the instant motion (#001) by defendants NFA Associates, LLC and Olde Towne Southampton Homeowners Association, Inc., for an order dismissing the complaint served in this action to the extent it asserts claims against these moving defendants, is granted pursuant to CPLR 3211(a)(7).

THOMAS F. WHELAN, J.S.C.