Plaintiff has moved pursuant to CPLR 3211(a)(1) and (a)(7) to dismiss two counterclaims interposed by defendants General Roofing Contractors, LLC, and Michael Dawson ("Defendants"). Defendants have opposed the motion. Plaintiff's motion is not directed toward defendant Endurance Assurance Corporation and that defendant has not appeared on the motion. This case arises from a dispute as to building materials and supplies purchased from Plaintiff by Defendants.

On motions to dismiss under CPLR 3211, the subject pleading is afforded a liberal construction, the facts alleged are presumed to be true and the pleader is accorded every favorable inference; the court determines whether the allegations fit into any cognizable legal theory (Leon v. Martinez, 84 NY2d 83 [1994]). Defendants' first counterclaim alleges breach of contract based on Plaintiff's failure to timely deliver sufficient building materials and supplies for two of its projects. The second counterclaim alleges interference with its business relationship with the customer on one of the two projects.

Plaintiff's first argument is that the counterclaims must be dismissed because Plaintiff has a defense founded upon documentary evidence (CPLR 3211[a][1]). Such a defense must be conclusively established by the documentary evidence submitted (Leon v. Martinez, 84 NY2d at 88). Plaintiff asserts two provisions in the Purchase Agreement that was part of a credit application submitted by Defendants prior to the purchases at issue. These provisions state, in essence, that Plaintiff shall not be liable for consequential or incidental damages in connection with the Purchase Agreement, and that the exclusive remedy for the buyer is repayment of the purchase price upon return of non-conforming items.

Defendant argues that these provisions do not apply here, because neither is incorporated into the purchase order, shop drawings or invoices that Defendants assert as constituting the [*2]entire contract between the parties for the subject purchases. However, as pointed out by Plaintiff, the credit application admittedly signed and submitted by Defendants provides that "all purchases" by Defendants are made pursuant to "ABC's Credit Application, this Credit Agreement, and ABC's Purchase Agreement."

The limiting provisions of the Purchase Agreement being thus incorporated in the subject transactions, the next question becomes whether these clauses conclusively establish a defense to the counterclaims. Both parties cite the seminal opinion in Cayuga Harvester, Inc. v. Allis-Chalmers Corp. (95 AD2d 5 [4th Dept 1983]). The Cayuga Harvester opinion presents considerable analysis of exclusive remedy provisions and consequential damages provisions, concluding that an exclusive remedy provision is enforceable unless it fails of its essential purpose and that a consequential damages provision is enforceable unless it is unconscionable. It is worth noting that the Cayuga Harvester opinion was an appeal from a summary judgment motion. The facts in the record were analyzed to determine whether the contract clauses in that case provided valid defenses. In other words, the presence of these provisions in the contact at issue here does not, without more, conclusively establish them as defenses, so that Plaintiff's §3211(a)(1) motion fails.

Plaintiff next asserts that the counterclaims should be dismissed pursuant to CPLR 3211(a)(7) for failure to state a cause of action. Defendants' first counterclaim sounds in breach of contract. "A breach of contract claim requires allegations of an agreement, performance by one party, failure to perform by the other party and resulting damages [citations omitted]" (New York Municipal Power Agency v. Town of Massena, 188 AD3d 1517, 1519 [3d Dept 2020]). As discussed above, the existence of a contract is alleged by both parties. Defendants assert that Plaintiff breached this contract by failing to deliver products in a timely manner, which resulted in Defendants suffering unspecified damages. However, Defendants do not allege that they performed under the contract. Indeed, Defendants' failure to perform is the basis for this lawsuit. Defendants were obligated to perform their contractual duties even if Plaintiff's delay made their performance burdensome (see Comprehensive Building Contractors, Inc. v. Pollard Excavating, Inc., 251 AD2d 951 [3d Dept 1998]). Defendants have not alleged any situation that would have excused their performance (see 22A NY Jur 2d, Contracts §365 et seq.).

The second counterclaim asserts interference with Defendants' business relationship with Whitehall School District. Plaintiff argues that a tortious interference with contract claim requires a valid contract between Defendants and a third party, Plaintiff's knowledge of that contract, Plaintiff's intentional procurement of the third party's breach of that contract without justification, actual breach of the contract and resulting damages (Lama Holding Co. v. Smith Barney, Inc., 88 NY2d 413, 424 [1996]). Defendants offer a different statement of their claim, describing it as tortious interference with prospective business advantage. "To establish a claim for tortious interference with prospective business advantage, a plaintiff must demonstrate that (a) the plaintiff had business relations with a third party; (b) the defendant interfered with those business relations; (c) the defendant acted with the sole purpose of harming the plaintiff or by using unlawful means; and (d) there was resulting injury to the business relationship [citations omitted]" (Zetes v. Stephens, 108 AD3d 1014, 1020 [4th Dept 2013]). These are actually two separate torts (cf PJI 3:56 with PJI 3:57).

Defendants' choice of theory appears more appropriate, as there is no allegation that the contract between Defendants and the school district was breached. However, there is also no allegation that Plaintiff acted with the sole purpose of harming Defendants or that Plaintiff used [*3]unlawful means. Indeed, there is no allegation of any intentional misconduct on the part of Plaintiff.

Each of Defendants' counterclaims lack allegations of an essential element of the claim asserted. While the Court can consider affidavits submitted by Defendants to supplement their pleading (Leon v. Martinez, supra, at 88), Defendants' submissions do not supply the missing elements. Each counterclaim thus fails to state a cause of action and must be dismissed.

The parties' remaining contentions have been considered, but do not alter the outcome of this motion. Therefore, in consideration of the foregoing, it is hereby

ORDERED, that the motion by Plaintiff to dismiss the counter-clams in Defendants' Answer is granted, and the counterclaims are hereby dismissed.

Notice of Motion; Affirmation of Scott H. Bernstein, Esq., with annexed exhibits;