Recitation per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

Upon the foregoing papers and after considering oral argument held on November 26, 2024, Plaintiff's motion for summary judgment (Motion Sequence No. 1), pursuant to CPLR § 3212, is DENIED. The cross-motion of Defendants City of New York, Daniel P. Connelly, Alex N. Dasrath, John M. Vampas, Eric A. Robinson, Bradford Scott Lander, Keechant L. Sewell, and Eric Leroy Adams (collectively, "City Defendants"), for an Order pursuant to CPLR § 3211(a)(7) dismissing the complaint for failure to state a cause of action or, in the alternative, [*2]transferring venue to Queens County pursuant to CPLR §§ 504(3) and 511(b) (Motion Sequence No. 2), is GRANTED in part and DENIED in part.

Plaintiff initiated this action following the towing and impoundment of her vehicle, seeking to recover $712,080.62 based on a self-styled "Schedule of Fees." The complaint alleges that, on March 16, 2023, New York City Police Department ("NYPD") officers Connelly, Dasrath, Vampas, and Robinson, together with tow operator Rajendra Timal of Richmond Towing Company, towed Plaintiff's vehicle from a public street in Queens.^[FN1] Plaintiff contends that the tow was unlawful and, contrary to Defendants' assertions, the VIN was clearly visible.^[FN2]

Plaintiff claims that by receiving and failing to object to her "Schedule of Fees," the Defendants accepted the imposition of certain monetary obligations.^[FN3] She asserts causes of action including Unlawful Search, Unlawful Seizure, Breach of Fiduciary Duty, Unjust Enrichment (as to Richmond Towing), and Respondeat Superior.^[FN4] In support of her claims, Plaintiff relies on various documents, including an "Affidavit of Fact; Notice of Claim and Payment Demand." Id.

Plaintiff moved for summary judgment on July 29, 2024, prior to the joinder of issue. On September 6, 2024, the City Defendants cross-moved to dismiss the complaint pursuant to CPLR § 3211(a)(7). Supporting their motion is an NYPD Property Clerk Invoice which states, inter alia, that the vehicle had "no real plates" and that the VIN was "blocked with electrical tape."^[FN5] On October 8, 2024, Plaintiff submitted opposition to the cross-motion and further support of her summary judgment motion. Plaintiff responded to the City's characterization of her complaint as indecipherable by stating that:

"In 2020, Plaintiff noticed Defendants of fees to be assessed if Defendant were to injure Plaintiff absent the right or privilege to do so; On March 16, 2023, Defendant injured Plaintiff by unlawfully confiscating Plaintiff's private property; Plaintiff assessed fees and delivered a statement of account (i.e., a billing statement) with a Payment Demand for payment of those fees; and, Defendant ignored Plaintiffs complaints and statements, and Plaintiff moved this Court to recover the unpaid debt incurred by Defendants following unlawful acts of Defendants"^[FN6].

On a motion to dismiss for failure to state a cause of action under CPLR § 3211(a)(7), the pleading is afforded a liberal construction. The Court must accept the facts as alleged to be true, afford plaintiff the benefit of every favorable inference, and determine only whether the facts alleged fit within any cognizable legal theory. See Leon v Martinez, 84 NY2d 83, 87—88 (1994); Guggenheimer v Ginzburg, 43 NY2d 268, 275 (1977); Dye v Catholic Med. Ctr. of Brooklyn & Queens, 273 AD2d 193, 193-194 (2d Dept 2000).

However, "[d]ismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery". Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 (2017); see Pinnacle Capital, LLC v O'Bleanis, 214 AD3d 913, 915 (2d Dept 2023). When evidentiary material is submitted in support of a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the criterion is whether the proponent of the pleading has a cause of action, not whether he or she has stated one. Xia—Ping Wang v Diamond Hill Realty, LLC, 116 AD3d 767, 768 (2d Dept 2014); Nunez v Mohamed, 104 AD3d 921, 922 (2d Dept 2013).

Here, Plaintiff's reliance on a self-drafted "Schedule of Fees" and "Notice of Claim" as the basis for monetary relief is legally untenable. The documents do not constitute enforceable contracts or negotiable instruments under New York law. Plaintiff's invocation of Article 3 of the Uniform Commercial Code ("UCC") is misplaced. The submitted documents do not satisfy the definitional requirements of a negotiable instrument under UCC § 3-104. Citibank, N.A. v Plagakis, 8 AD3d 528 (2d Dept 2004) (court declined to recognize fabricated fee documents as legally binding).

Moreover, Plaintiff's attempt to impose contractual liability based on silence or failure to object to these documents lacks merit. New York does not recognize contract formation by unilateral presentation and inaction absent established contractual relationships or legally recognized duties. Matter of Express Indus. & Term. Corp. v New York State Dept. of Transp., 93 NY2d 584, 589—590 (1999).

Accordingly, Plaintiff fails to assert any legally cognizable theory that would entitle her to the relief sought against the City Defendants. The complaint fails to state a cause of action and must be dismissed as against those Defendants.

Plaintiff's motion for summary judgment is denied for multiple reasons. First, the motion is procedurally premature as issue had not yet been joined. City of Rochester v Chiarella, 65 NY2d 92, 101 (1985); Blue Is. Dev., LLC v Town of Hempstead, 131 AD3d 497 (2d Dept 2015).

Second, even if the motion were procedurally proper, Plaintiff has not demonstrated entitlement to judgment as a matter of law. Summary judgment may only be granted where the movant establishes a prima facie case demonstrating the absence of any triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; 2832 Linden Blvd. Realty, LLC v Health Ins. Plan of Greater NY, 234 AD3d 808, 809—810 [2d Dept 2025]). Plaintiff's reliance on documents of her own creation, lacking legal force or factual foundation, fails to meet this burden.

Plaintiff's contention that the answer of certain defendants was untimely is without merit. Any objection to the form or timeliness of a pleading must be made within the time prescribed by CPLR § 2101(f). Plaintiff failed to return the answer with a statement of particular objections within fifteen days, and thus waived any such claim. U.S. Bank N.A. v Lopez, 192 AD3d 849, 850 (2d Dept 2021).

In light of the dismissal of the claims against the City Defendants, the branch of the cross-motion seeking to transfer venue to Queens County is denied as moot.

This constitutes the Decision and Order of the Court.