The following e-filed documents, listed by NYSCEF document numbers 6—20�, were read on Defendant's motion to dismiss.

Upon the foregoing documents, it is ordered that the motion to dismiss the complaint against defendant Robert Mazzoli pursuant to CPLR §§ 3211(a)(1) and (a)(7) is denied for the following reasons:

Plaintiffs' complaint asserts four causes of against Defendant: breach of contract, unjust enrichment, violation of the covenant of good faith and fair dealing, and a plea for rescission of the contract in its entirety. Plaintiffs contend that Defendant misrepresented material facts about [*2]the business, misappropriated company goods and materials, and failed to meet his agreed-upon obligation to teach and mentor the Plaintiffs in performing the company's work.

Defendant moves to dismiss each cause of action in Plaintiffs' complaint for their failure to state a cognizable claim and Defendant's own ability to assert a complete defense founded upon documentary evidence, pursuant to CPLR §§ 3211(a)(7) and (a)(1), respectively. Plaintiffs have opposed. The plaintiff's allegations, which must be accepted as true for the purpose of this motion (USCHAG Corp. v Flagstar Bank, FSB, 220 AD3d 823 [2d Dept 2023]), are as follows:

Discussions for the sale of Defendant/Seller Robert Mazzoli's paving and masonry business, Pave Your Way Blacktop by Mazzoli, Inc. (the "Company") to Plaintiffs/Buyers Andrew Schiro and Alfred Sirica first began in September of 2022. On January 20, 2023, the parties entered into a Stock Purchase Agreement (the "Contract") for the business, wherein Sirica and Schiro agreed to purchase the business, its assets, accounts receivables, equipment, and, inter alia its goodwill from sole-owner Mazzoli. Plaintiffs agreed to pay $160,0000 in total consideration to Defendant. Pursuant to the Contract, Plaintiffs provided Defendant with a cash payment of $35,000 and executed a promissory note for the remaining $125,000. In July of 2024, Mazzoli commenced an action for summary judgment in lieu of complaint against Sirica and Schiro in Suffolk County Supreme Court (Index No. 616473/2024) seeking payment on the promissory note. Mazzoli's action was based upon Sirica & Shiro's failure to make payments as agreed-upon in the note. While the purpose behind the promissory note was financing the purchase of the Company, Hon. Linda Kevins found the Contract and the promissory note were not "inextricably intertwined." Although the Suffolk County Court entered a judgment against Sirica & Schiro, that ruling does not affect this Court's ability to adjudicate the instant case (nor do any of the parties contend contrariwise).

On a motion to dismiss the complaint pursuant to CPLR 3211 (a)(7) for failure to state a cause of action, the Court must afford the pleadings a liberal construction, accept all facts as alleged in the pleadings to be true, and accord the plaintiff the benefit of every possible favorable inference. The court need only determine "whether the facts, as alleged, fit within any cognizable legal theory." Breytman v Olinville Realty, LLC, 54 AD3d 703, 704 [2d Dept 2008]. "In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims" Nilazra, Inc. v Karakus, Inc., 136 AD3d 994, 995 [2d Dept 2016], quoting Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998].

While the factual allegations contained in both the Complaint and Plaintiffs' supplementary affidavits may not fit neatly into one of the four causes of action initially brought against Defendant, the standard to survive a motion to dismiss at this stage does not require such specificity. See Doria v Masucci, 230 AD2d 764, 765—66 [2d Dept 1996], Leon v Martinez, 84 NY2d 83, 87—88 [2d Dept 1994]. Plaintiffs claim that Defendant: used "Company assets [for] personal projects and side jobs"; failed to disclose that the "business was reliant upon [Defendant's] personal relationships"; "caused damage on a Company project resulting . . . in a cost of $38,000"; or "refused to mentor, teach and guide Plaintiffs in performing the Company's work." These claims all go beyond the assertion of bare legal conclusions, and, when taken as true, fit within cognizable legal theories. See Zuniga v BAC Home Loans Servicing, L.P., 147 AD3d 882 [2d Dept 2017]. Accordingly, it would be inappropriate for the Court to dismiss Plaintiffs' complaint in its entirety for failure to state a cause of action at this time (see Breytman, 54 AD3d at 703—04) and the branch of the motion seeking dismissal of the entire [*3]complaint under CPLR 3211(a)(7) is denied.

Plaintiffs' first claim against Defendant is for breach of contract. Where evidentiary material (such as a supplementary affidavit) is submitted and considered on a motion to dismiss pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one. "Unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate." Rabos v R&R Bagels & Bakery, Inc., 100 AD3d 849, 851—52 [2d Dept 2012]. The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance of the contract, the defendant's subsequent breach of such contractual obligations, and damages resulting from the breach. Jasopersaud v Lewis, 222 AD3d 630, 631 [2d Dept 2023].

Here, Plaintiffs' claim contained sufficient factual allegations to state such a cause of action against Defendant Mazzoli. The complaint and supplementary affidavits alleges among other things, that Plaintiffs entered into an agreement with Defendant for the sale of Defendant's Company. After the sale, Defendant would be available to support the Plaintiffs and the business as needed. The Complaint further alleges that Defendant failed to meet those obligations pursuant to the Contract. Plaintiff has met the preliminary threshold for maintaining this cause of action. Defendant has failed to demonstrate that the facts alleged in the Complaint are undisputedly not facts at all, as required for dismissal at this stage. See 1470 39th Street, LLC v Goldberg, 226 AD3d 853 [2d Dept 2024]. The motion to dismiss Plaintiff's breach of contract claim pursuant to CPLR 3211(a)(7) is denied.

The second cause of action sounds in unjust enrichment. To state a cause of action to recover damages for unjust enrichment, a plaintiff must allege that "(1) the other party was enriched, (2) at that [petitioning] party's expense and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered." Cruz v McAneney, 31 AD3d 54, 59 [2d Dept 2006]. A cause of action pursuant to a quasi-contract theory applies in the absence of an express agreement and is not really a contract at all, but rather a legal obligation imposed in order to prevent a party's unjust enrichment. See, Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]. When there is no dispute as to the existence of a contract and the contract covers the dispute between the parties, the plaintiff may not proceed upon a theory of quantum meruit. See, Alamo Contract Builders v CTF Hotel Co., 242 AD2d 643 [2d Dept 1997]. This logic applies when the contract itself and its alleged breach provide the basis for full recovery, making other quasi-contract claims unnecessary and duplicative. Mickey's Place on 43rd St., Ltd. v Eye Design Interiors, LLC, 2011 NY Slip Op. 31067[U] [NY Sup Ct, Queens County 2011]. This does not mean, however, that a claim for unjust enrichment may never properly be considered alongside a breach of contract claim. AHA Sales, Inc. v Creative Bath Products, Inc., 58 AD3d 6 [2d Dept 2008].

It is undisputed that a valid contract exists between the parties for the sale of the Company. To the extent that any of Plaintiffs claims under the unjust enrichment cause of action are covered by the scope of their contract, they are dismissed (this apparent hesitancy to be specific is due to the failure of the complaint to separate the facts that pertain to each cause of action). However, Plaintiffs make a claim that Defendant misappropriated company materials for Defendant's own personal and side projects. Because there is no clause in the Contract regarding whether Defendant may use company supplies for non-company related purposes, the unjust [*4]enrichment claim appears to go beyond the scope of the Contract. AHA Sales, Inc. v Creative Bath Products, Inc., 58 AD3d 6 [2d Dept 2008]; Hochman v LaRea, 14 AD3d 653, 655—56 [2d Dept 2005] ("[W]here the contract does not cover the dispute in issue, a plaintiff may proceed upon a theory of quasi-contract as well as breach of contract and will not be required to elect his or her remedies."). Defendant, by using the Company's "goods and supplies" without consent, may have enriched himself without due compensation to Plaintiffs. Contrary to Defendant's contention, "[this] equitable cause of action need not be dismissed because there existed a written agreement between the parties." Snitovsky v Forest Hills Orthopedic Group, P.C., 44 AD3d 845, 846 [2d Dept 2007]. Defendant's motion to dismiss Plaintiffs' second cause of action for unjust enrichment is denied.

Under the third cause of action, Plaintiffs allege a breach of the covenant of good faith and fair dealing. For a court to infer a covenant of good faith and fair dealing into a contract that is fully integrated through its merger clause, the implied terms must be consistent with the express terms of the contract. SNS Bank, N.V v Citibank, N.A., 7 AD3d 352 [1st Dept 2004]. For a complaint to state such a cause of action, "the plaintiff must allege facts which tend to show that the defendant sought to prevent performance of the contract or to withhold its benefits from the plaintiff." Aventine Inc. v Canadian Imperial Bank of Commerce, 265 AD2d 513, 514 [2d Dept 1999]. The implied covenant protects implied terms which a reasonable promisee would have understood to be part of the agreement, without extending so far as to "undermine a party's 'general right to act on its own interests in a way that may incidentally lessen' the other party's anticipated fruits from the contract." M/A-COM Sec. Corp v Galesi, 904 F2d 134, 136 [2d Cir 1990], quoting Van Valkenburgh, Nooger & Neville, Inc. v Hayden Pub. Co., 30 NY2d 34 [1972]. While there is no explicit non-compete provision in the Contract at issue, the agreement did obligate Defendant to turn over his client list and "co-operate" with Plaintiffs in the operation of the business. Sirica and Schiro allege that Mazzoli knew the pair would be reliant on him while they learned the business and how to use the requisite equipment. Plaintiffs also allege that Defendant failed to turn over or disclose certain client relationships and may have continued to provide work to Company accounts after selling the business. Since there is an issue as to whether Defendant's conduct violated his obligations to act in good faith as Plaintiffs would have reasonably anticipated, the motion to dismiss Plaintiffs' good faith and fair dealing cause of action is denied.

Under the fourth and final cause of action, Plaintiffs seek rescission of the Contract in its entirety. At the Court's discretion, rescission may be granted where the petitioner is lacking any other possibility for a "complete and adequate remedy at law" and where the circumstances of the agreement are such that all parties can be restored to their pre-contract positions should the relief be granted. Habberstad Volkswagen, Inc. v GC Volkswagen, Inc., 127 AD3d 1019 [2d Dept 2015]. Rescission is appropriate when the breach is so severe that it "substantially defeats" the purpose of the agreement. City of Schenectady v Edison Exploratorium, Inc., 147 AD3d 1264 [3d Dept 2017]. Rescission requires each party to return any benefit conferred upon them through the contract. Habberstad Volkswagen, Inc., 127 AD3d at 1019. While this remedy may result in the repayment of funds to a plaintiff, it is improper for a plaintiff to seek money damages from a breach of contract and rescission simultaneously. Id. Should Plaintiffs in this case ultimately prevail, they will only be entitled to receive either the monetary damages or the rescission requested. At this juncture, however, the Court is unable to determine whether the alleged breach is so severe as to warrant rescission, and whether the parties may be returned to [*5]their pre-contract positions should such relief be granted. Accordingly, this Court denies the branch of Defendant's motion related to dismissal of the rescission remedy.

The branch of the motion seeking to dismiss the complaint pursuant to CPLR 3211(a)(1) is also denied. On a motion pursuant to CPLR 3211(a)(1), the defendant's documentary evidence must be "unambiguous, authentic, and undeniable." Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997 [2d Dept 2010]. By submitting the uncontroverted contract and basing this branch of the motion upon it, the Contract, Defendant has met this preliminary threshold. See Fontanetta v Doe, 73 AD3d 78 [2d Dept 2010] ("3211(a)(1) was enacted to cover . . . for example, a written modification or any defense based on the terms of a written contract"). In order to prevail on such a motion, however, the evidence "must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law." Magee-Boyle v Reliastar Life Insurance Company of New York, 173 AD3d 1157, 1159 [2d Dept 2019], quoting Gould v Decolator, 131 AD3d 845, 847 [2d Dept 2014]. The Court finds the terms of the Contract itself are insufficient to defeat the factual allegations contained within Plaintiff's breach of contract claim. Proof of the Contract alone cannot conclusively establish Defendant's conduct within those same terms. While Defendant's assertion that the contractual term instructing Defendant to turn over his "client list" did not require sharing "sales leads from Angie's List" may be correct, Defendant's assertion that the Contract contained "no express provision requiring the Defendant to 'continue to support the ongoing business of the Company'" is belied by a plain reading of Section 3(c) of the Contract. This section states that Defendant will "co-operate and be available as needed to answer questions with respect to any on-going business engaged in by [Company]," and clearly indicates continued support of the business. Accordingly, the submitted documentary evidence does not unambiguously dispose of all factual allegations related to Plaintiff's breach of contract. Since Defendant's arguments for dismissal of the remaining causes of action rely solely upon the terms of the contract, as discussed above, those terms do not preclude the aforementioned causes of action. Accordingly, the branch of the motion seeking dismissal of the complaint pursuant to CPLR 3211(a)(1) is denied.