Plaintiff Boca Bay Group II, LLC (Boca Bay) and Defendant TLM Group LLC (TLM) have a valid contract that was agreed upon and accepted by Michael Carron, a TLM partner, on July 1, 2022. On July 6, 2022, the offer was verbally accepted by Edwin Pastrof (a/k/a Edwin Pastro), Boca Bay's principal and sole shareholder. TLM retained Boca Bay as an independent contractor and technical advisor to perform professional project management for an Amazon Worldwide Service (AWS) project for 44 weeks.

On September 20, 2022, approximately 10 weeks after Boca Bay began working on the AWS project, Shane K. Gallagher, an AWS construction manager, emailed Carron requesting that Pastrof be notified that AWS could not use him on-site. Boca Bay maintains that following this communication, Carron, representing TLM, did not terminate the contract but instead extended it for an additional three months.

TLM began to slow-pay Boca Bay after October 2022. On September 26, 2023, Boca Bay forwarded to TLM a final accounting and demand for payment in the amount of $172,990.00. Carron responded that TLM had terminated the contract back in September 2022 [*2]and claimed that TLM had "sponsored" Boca Bay for eight months. Pastrof was later informed that no further payments would be made under the contract.

Boca Bay brought this action against TLM, seeking $172,990 in damages (plus interest) on contract and quasi-contract theories of liability.

TLM now moves to dismiss the entire action under CPLR 3211 (a) (7) for failure to state a cause of action. The motion is denied.

I. The Branch of TLM's Motion Seeking Dismissal of Boca Bay's Breach-of-Contract Claim

TLM moves first to dismiss Boca Bay's first cause of action, for breach of contract. This branch of the motion is denied, because Boca Bay's contract claim states a cause of action.

The elements of a contract claim are (1) that the parties entered into a valid agreement, (2) that plaintiff performed, (3) that defendant failed to perform, and (4) damages. (See VisionChina Media Inc. v. Shareholder Representative Servs., LLC, 109 AD3d 49, 58 [1st Dept 2013].) One necessary threshold is that plaintiff perform the contract pursuant to its terms; otherwise, plaintiff has not established all the required elements to sustain a breach-of-contract claim. (Hermandad Y Asociados, Inc. v. Movimiento Misionero Mundial, Inc., 2009 NY Slip Op 50500[U] [Sup Ct, NY County 2009].)

TLM contends that Boca Bay failed to meet its contractual obligation under the contract in dispute. According to TLM, Boca Bay did not meet the condition precedent for TLM to be required to pay on Boca Bay's invoice. Under CPLR 3015 (a), the burden to plead "specifically and with particularity" that any condition precedent had not been fulfilled rests on the party resisting enforcement of a contract. (1199 Hous. Corp. v. International Fid. Ins. Co., 14 AD3d 383, 384 [1st Dept 2005].) In 1199 Hous. Corp., defendant failed to identify specifically and with particularity any procedure with which plaintiff failed to comply. Here, TLM argues that Boca Bay did not satisfactorily submit timesheets and invoice terms. TLM relies on Boca Bay's demand breakdown in Exhibit G. (See NYSCEF No. 21.) But that exhibit does not include copies of the timesheets/invoices that Boca Bay submitted, or show how those timesheets/invoices lacked information that they were required to include. Absent evidence of this kind, TLM has not shown, at least at this stage of the action, that Boca Bay failed to satisfy a condition precedent to its contract claim.

II. The Branch of TLM's Motion Seeking Dismissal of Boca Bay's Quantum-Meruit, Unjust-Enrichment, Promissory-Estoppel Claims

TLM also seeks dismissal of Boca Bay's second, third, and fourth causes of action, sounding in theories of quantum meruit, unjust enrichment, and promissory estoppel, respectively. TLM argues that these claims are subject to dismissal as duplicative of Boca Bay's breach-of-contract claim. This argument is unpersuasive.

Quantum meruit, unjust enrichment, and promissory estoppel, are quasi-contractual theories of liability. A plaintiff may proceed on a quasi-contractual theory and a breach of contract when "there is a bona fide dispute as to the existence of a contract or the application of a [*3]contract in the dispute in issue." (Scarola Ellis LLP v Padeh, 116 AD3d 609, 611 [1st Dept 2014] [internal quotation marks omitted].)

Here, TLM disputes that a valid contract exists—specifically, that a valid contract existed for the AWS project after September 20, 2022. On that day, the AWS construction manager emailed a termination request to TLM. But Boca Bay asserts that TLM did not terminate the contract but modified it after September 2022. TLM argues now that the contract was terminated on September 20, 2022, and that no active contract exists between the two parties for the AWS project. Given this bona fide dispute about the existence of a contract, Boca Bay's quasi-contract causes of action should not be dismissed at the pleading stage as duplicative.

Accordingly, it is

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

ORDERED that the parties shall appear before this court for a telephonic preliminary conference on August 2, 2024.