The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 were read on this motion for DISMISSAL.

In this action, plaintiff, LFH Hospitality, Inc., has sued defendant, Icon Realty Management, LLC, alleging that Icon owes LFH contractual payments for housekeeping services supplied by LFH for two Manhattan hotels. Icon moves to dismiss under CPLR 3211. The motion is denied.

1. Icon argues that dismissal is required under CPLR 3211 (a) (1) because Icon has shown through documentary evidence that it is neither the owner nor managing agent of the two hotels in question—and therefore, assertedly, cannot be responsible for contractual obligations incurred on behalf of the hotels. Icon fails to meet its burden on this branch of its motion: Icon has not submitted (i) documentary evidence that (ii) conclusively refutes the allegations of the [*2]complaint. Icon relies on an affidavit of its managing member, Terrence Lowenberg. (See NYSCEF No. 5.) But an affidavit cannot constitute documentary evidence for purposes of CPLR 3211 (a) (1).^[FN1]

Icon also submits a printout from the New York City Department of Housing Preservation & Development website showing the two hotels' building-registration records. (See NYSCEF No. 6.) Those records, in turn, identify a non-Icon owner and managing agent for each hotel. But Icon has not established that these records are accurate and essentially indisputable, as required by CPLR 3211 (a) (1). Additionally, that Icon is not listed as the owner or the managing agent does not conclusively foreclose the possibility that Icon could also have assumed contractual obligations on behalf of the hotels. Further, Terrence Lowenberg, Icon's managing member, is listed as an officer of the two LLCs that own the hotels, and a representative for the LLC serving as managing agent of one of the two hotels. (See id. at 3, 5.) And this court takes judicial notice of the fact that the address given for all of the LLCs and their officers, 419 Lafayette Street, 5th Floor, in Manhattan, is the same as the address for Icon that appears in the Secretary of State's records.

In short, the documents submitted by Icon in support of its CPLR 3211 (a) (1) motion do not constitute documentary evidence conclusively disproving LFH's claims. If anything, the documents evidence close connections between Icon and the two hotels at issue.

2. Icon similarly argues under CPLR 3211 (a) (7) that the motion fails to state a cause of action because LFH failed to sue the correct parties, namely the owners and managing agents of the hotels. But again, Icon has not shown that only the owners and managing agents have the authority to enter into contracts on behalf of the hotels. That gap is particularly noteworthy given the close connections discussed above among Icon and the hotel owners and managing agents. Indeed, in opposition to the motion to dismiss, plaintiff has submitted an email from Lowenberg to a principal of LFH—sent from an Icon email address—promising that LFH would be paid and directing a subordinate to deal with making the payment. (See NYSCEF No. 13.)

3. Icon also contends that the action should be dismissed under CPLR 3211 (a) (10) for failure to join necessary parties—the owners and managing agents of the hotels. This contention is unpersuasive. As an initial matter, it is unclear to the court, on the current record, whether a judgment against Icon would inequitably affect the LLCs claimed to be necessary parties. But even assuming that to be the case, the proper remedy in that scenario is not to dismiss the action, but rather to order those parties summoned. (See CPLR 1001 [b].) Icon has not shown that the owners/managing agents would be entitled to dismissal of the action against them once summoned as necessary parties, as required to warrant dismissal of the entire action for nonjoinder. (See Windy Ridge Farm v Assessor of Town of Shandaken, 11 NY3d 725, 727 [2008].) This court concludes that as a prudential matter, the best course is for LFH to join the LLCs that Icon contends to be the owners and the managing agents of the two hotels at issue.

Accordingly, it is

ORDERED that Icon's motion to dismiss is denied; and it is further

ORDERED that LFH shall within 14 days of entry of this order serve and file a supplemental summons and amended complaint on the four LLCs listed in the HPD records appearing at NYSCEF No. 6, joining those LLCs as defendants in the action; and it is further

ORDERED that once LFH has served the supplemental summonses and amended complaint, it shall also serve a copy of this order with notice of its entry and a copy of the amended complaint on the office of the General Clerk (by the means set forth in the court's e-filing protocol, available on the e-filing page of the court's website, https://ww2.nyco urts.gov/courts/1jd/supctmanh/E-Filing.shtml), which shall amend the caption of this action and update its records accordingly; and it is further

ORDERED that Icon may serve and file an answer within 20 days of service of the supplemental summonses and amended complaint; and it is further

ORDERED that the parties shall appear before this court for a telephonic preliminary conference on April 12, 2024.