The following papers numbered 1 to 4 were read on this motion:

Plaintiff Jason Friedland brings his motion seeking to dismiss the first counterclaim, for breach of contract against him. This action arises out of a business relationship among the parties involving a moving business.

The parties entered into an agreement in February 2014 the "Agreement") that provides, in relevant part, that defendants "Golan and Itzhaki shall be responsible for the day-to-day operations of the business." The Agreement sets Golan and Itzhaki's initial compensation, with $122,000 per year for Golan and $200,000 per year for Itzhaki. With respect to both of them, the Agreement states that "Jason, or his successor as Manager, shall be the sole arbiter of salary and compensation for" them. The Agreement also provides that "Jason's compensation shall be set at one half of the compensation for Golan for his services to the Company. If Jason starts to work at the Company full time, Golan shall be the arbiter for Jason's compensation."

The first counterclaim states, in relevant part, that "Counterclaim Defendant Jason Friedland has breached his contractual obligations to Counterclaim Plaintiffs under the Operating Agreement, including but not limited to: i) his obligation under Section 4.3.2(a) and 4.3.2(b) to negotiate their salaries in good faith and not to act arbitrarily, capriciously, and vindictively in determining their salary amounts; ii) his obligation under Section 4.3.2(d) only to draw a salary for 'services to the Company'; and iii) the implied duty of good faith and fair dealing."

"On a motion pursuant to CPLR 3211(a)(7) to dismiss a pleading for failure to state a cause of action, the pleading must be liberally construed, the factual allegations must be deemed true, and the pleading party must be accorded the benefit of every possible favorable inference." Michaan v. Gazebo Horticultural, Inc., 117 AD3d 692, 692, 985 N.Y.S.2d 601, 602 (2d Dept. 2014).

Movant argues that nowhere in the Agreement does it require that he not act "arbitrarily, capriciously, and vindictively in determining their salary amounts"^[FN1] and that as a result, this counterclaim should be dismissed. The Court disagrees. It has long been settled that "Within every contract is an implied covenant of good faith and fair dealing. This covenant is breached when a party to a contract acts in a manner that, although not expressly forbidden by any contractual provision, would deprive the other party of the right to receive the benefits under their agreement." Aventine Inv. Mgmt., Inc. v. Canadian Imperial Bank of Com., 265 AD2d 513, 513—14, 697 N.Y.S.2d 128, 130 (2d Dept. 1999). While movant has the sole discretion to determine defendants' salaries, he cannot do so "arbitrarily, capriciously, and vindictively."

Movant also argues that the aspect of the first counterclaim that asserts that he breached the Agreement by breaching the implied duty of good faith and fair dealing is duplicative of the breach of contract and should be dismissed. Again, the Court disagrees. This is not a standalone cause of action. Defendants are merely restating their belief that movant acted arbitrarily, [*2]capriciously and vindictively. As stated above, "Implicit in every contract is an implied covenant of good faith and fair dealing. The implied covenant of good faith and fair dealing is a pledge that neither party to the contract shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruit of the contract, even if the terms of the contract do not explicitly prohibit such conduct. Such a cause of action is not necessarily duplicative of a cause of action alleging breach of contract." Gutierrez v. Gov't Emps. Ins. Co., 136 AD3d 975, 976, 25 N.Y.S.3d 625, 627 (2d Dept. 2016).

With respect to movant's argument that "the assertion that Jason drew a salary cannot form the basis of a breach of contract claim" because the Agreement acknowledges that he does provide services to the company, the Court does not read the Agreement as movant does. The Agreement states that movant shall be compensated "for his services to the Company." If it were the case, for example, that movant provided literally no services to the Company, then pursuant to this provision, he would be entitled to no compensation. This is a factual question that must await discovery.

The motion to dismiss is denied in its entirety.

The foregoing constitutes the decision and order of the Court.