Civil Court of the City of New York, Kings County

Decided on July 6, 2026

Index No. CV-017724-25/KI

Chidi A. Eze, J.

[*1]

Upon the foregoing cited papers, the Decision/ Order on the Defendant's motion to dismiss and Plaintiff's cross-motion to amend his Complaint is as follows:

The motions were taken on submission on June 11, 2026.

FACTS OF THE CASE

Plaintiff filed this action on December 5, 2025, by filing Summons with Endorsed Complaint, seeking to recover for an alleged "unlawful cancellation fee" charged to his American Express Card by defendant.

It is undisputed that on June 25, 2025, plaintiff purchased an all-inclusive, family holiday package trip to Santa Domingo for Five nights, which included return flight tickets and two rooms, for a stay from December 28, 2025 to January 2, 2026, through defendant's website. The total cost was $10,947.62 (Flight - $3,405.42; Hotel - $7,542.20). Abreu Aff. at ¶ 12. According to plaintiff, on June 26, 2025, just one day after the online purchase, plaintiff made changes to the hotel reservation. He changed one of the room types and paid the difference of about $198.50. He cancelled the reservation for the second room completely.

Plaintiff claims that following this change to a room type, defendant imposed an unlawful cancellation fee in the amount of $3,771.10. On the other hand, defendant claims plaintiff forfeited the money paid for the second room, when he cancelled it, pursuant to the hotel's policy, and that plaintiff knew that said booking was nonrefundable based upon the display of these terms on its websites for all prospective offerees to see. Defendant asserts that the $3,771.10 represents a forfeiture of the money paid for the second room that was cancelled, and that this was not cancellation fee.

The amount plaintiff is seeking to recover here, $3,771.10, does not appear to be a cancellation fee, rather it is the cost plaintiff paid for one of the rooms that plaintiff cancelled. If one divides the total amount plaintiff paid for the two rooms by half, you get $3,771.10. Defendant argues that the hotel's refund/non-refund policy is to blame rather than its own booking policy. Defendant avers that plaintiff knowingly purchased a non-refundable room type, resulting in the loss, when he cancelled. Further, plaintiff's handwritten Application for a Summons states the reason for the claim as "Failure to Return Hotel deposit in violation of Truth in Travel Act"

MOTION TO DISMISS

Defendant moved to dismiss the complaint on several grounds on May 7, 2026, and plaintiff cross-moved to amend his complaint on June 8, 2026. Ordinarily, the court would first address the motion to amend the complaint because, if granted, the amended complaint may cure the defects, if any, that precipitated the motion to dismiss. However, the within motion to dismiss is grounded mostly upon the substance/theory of the case, rather than sufficiency of the pleading, so it would be addressed first.

i. CPLR §3216

Defendant's motion to dismiss pursuant to CPLR §3216 is unavailing since CPLR [*2]§3216(b)(2) mandates that "[N]o dismissal shall be directed under any portion of [it] and no court initiative shall be taken or motion made thereunder unless one year must have elapsed since the joinder of issue or six months must have elapsed since the issuance of the preliminary court conference order where such an order has been issued, whichever is later." Here, issue was joined when defendant filed its Answer on January 12, 2026, thus, one year has not elapsed since issue was joined.

If defendant is, in effect, requesting dismissal based on discovery violation under CPLR§ 3126^FN1, that relief too, is unavailing, because defendant did not accompany the motion with an Affirmation of Good Faith, as required by 22 NYCRR 202.7. "Pursuant to 22 NYCRR 202.7 (a) and (c), a motion relating to disclosure must be accompanied by an affirmation from moving counsel attesting to a good faith effort to resolve the issues raised in the motion, including the time, place, and nature of the consultation as well as the issues discussed." Muchnik v Mendez Trucking, Inc., 212 AD3d 640, 2023 NY Slip Op 00100 (2nd Dept. 2023). "Failure to provide an affirmation of good faith which substantively complies with 22 NYCRR 202.7 (c) warrants denial of the motion". Bayview Loan Servicing v. Evanson, 230 AD3d 1091, 2024 Ny Slip Op 04367 (2nd Dept 2024) (Quoting Behar v Wiblishauser, 219 AD3d at 794 [internal quotation marks omitted]).

Accordingly, defendant's motion to dismiss on this ground fails.

ii. CPLR §3211(a)(3) (Lack of Capacity to Sue)^FN2

Defendant argues that plaintiff lacks standing because he was not listed on the itinerary of the holiday package and/or he does not appear to be one of the intended hotel guests. However, there is no evidence on the record that plaintiff was not one of the individuals who purchased the online travel package. On the contrary, plaintiff has been the only individual dealing with defendant and its representatives/agents since June of 2025 when the package was purchased. Nor is there any evidence that the credit card used for the transaction was not issued to plaintiff personally. Whether or not plaintiff was listed on the itinerary is immaterial to his standing to maintain this case, if in fact, it was his credit card used for the purchase. He could have purchased the trip for his family members using his credit card.

"On a defendant's motion to dismiss the complaint based upon the plaintiff's alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of [*3]standing as a matter of law" MLB Sub I, LLC v Bains, 148 AD3d 881 (2nd Dept. 2017) (quoting New York Community Bank v McClendon, 138 AD3d 805, 806 [2016]; Arch Bay Holdings, LLC-Series 2010B v Smith, 136 AD3d 719, 719 [2016]). "To defeat a defendant's motion, the plaintiff has no burden of establishing its standing as a matter of law; rather, the motion will be defeated if the plaintiff's submissions raise a question of fact as to its standing" Id. (quoting Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 60 [2015]; citing New York Community Bank v McClendon, 138 AD3d at 806).

Here, the defendant fails to meet this burden.

In any case, CPLR §3211(e) states that any objection or defense based upon CPLR §3211(a)(3) is waived if not raised in a timely (pre-answer) motion or in an answer. See Nestor I, LLC v Moriarty-Gentile, 179 AD3d 936, 2020 NY Slip Op 00421 (2nd Dept. 2020) (Holding that such a motion is timely if it is made before service of the answer is required). Here, defendant filed its Answer since January 12, 2026, and its Answer does not contain an affirmative defense on this ground, nor did defendant move on this ground before its answered. Thus, defendant waived the issue of standing. See Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d 239 (2nd Dept 2017) (Holding that an argument that plaintiff lack's standing, if not asserted in the answer or in pre-answer motion to dismiss, is waived pursuant to CPLR 3211[e]) (citations omitted).

Accordingly, defendant's motion to dismiss under CPLR §3211(a)(3) fails.

iii. CPLR §3211(a)(1) & (7)

Defendant, in its answer, pled the affirmative defense of CPLR §3211(a)(1) (a defense founded upon documentary evidence). As for CPLR §3211(a)(7) ground for dismissal (failure to state a cause of action), it may be raised at any time. See CPLR §3211(e).

a. CPLR 3211(a)(7)

Initially, the court notes that plaintiff's complaint contains no factual allegations of the events that purportedly gave rise to this lawsuit, other than the one line that simply says, "Return of Deposit for $3,500 with interest from 01/25/2025". This is because it is a form-complaint (also known as "Summons with Endorsed Complaint") generated by the clerk of the court, usually meant for pro se litigants. The fact that the form-complaint is bereft of factual allegations is hardly a ground to dismiss a case in this court. If it were a ground for dismissal in this court, our case inventory would always be near zero.

"In determining a motion pursuant to CPLR 3211(a)(7), the court is limited to an examination of the pleadings to determine whether they state a cause of action, accepting facts alleged as true and interpreting them in the light most favorable to the plaintiff." Fedele v. Qualified Personal Residence Trust, 137 AD3d 965, 27 N.Y.S.3d 613 (2nd Dept 2016) (citing Miglino v. Bally Total Fitness of Greater NY, Inc., 20 NY3d 342, 351, 961 N.Y.S.2d 364, 985 [*4]N.E.2d 128). Here, the form-complaint used by plaintiff to initiate this case cannot form the basis for dismissal for failure to state a cause of action, as this is a common practice in this court, designed to assist pro se litigants.

Moreover, CPLR §305 permits the service of summons with notice^FN3, without the need to serve a complaint, so far as the summons contains the nature of the action and the relief sought. (CPLR §305[b]). CPLR §3012(a) also makes it optional for a complaint to be served with summons, except for consumer credit transaction complaints. Here, plaintiff served a summons with notice that met these requirements. Further, CPLR§ 3012(b) directs that "[I]f the complaint is not served with the summons, the defendant may serve a written demand for complaint within the time prescribed by CPLR 320 for an appearance", which is 20 or 30 days from service of the summons. Here, defendant presented no evidence of such written demand.

Additionally, discovery, which has already commenced in this case, would elucidate the claims. Still further, before this court is plaintiff's cross-motion to amend his complaint, and a review of the proposed amended complaint shows that it amplifies his claims in great details.

Although plaintiff's proposed amended complaint is not part of this case, however, his affidavit in opposition to defendant's motion to dismiss is going to be considered in deciding defendant's within motion. In dealing with a motion to dismiss "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint"' Selechnik v. Law Office of Howard R. Birnbach, 82 AD3d 1077, 920 N.Y.S.2d 126 (2nd Dept 2011) (quoting Leon v. Martinez, 84 NY2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Plaintiff's affidavit in opposition provided detailed factual basis for his claims.

Accordingly, defendant's motion under CPLR §3211(a)(7) fails.

b. CPLR 3211(a)(1)

Defendant claims that documentary evidence, being its "[T]erms of Service, which are available for full review on the Website" completely defeats plaintiff's claims. Although defendant attached, as its Exhibit L, what appears to be Expedia's Terms of Service, this court is unable to determine, on this motion, if that document was posted in a conspicuous manner on that website when plaintiff purchased the trip package. See Swipe Ice Corp., Inc. v. UPS, 2018 NY Slip Op 30178(U) (Kings Sup Ct. 2018). Nor is the court able to determine if said document was posted at all on the website on the day in question.

'A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the "documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim"' Fontanetta v. Doe, 73 AD3d 78, 83—84, 898 N.Y.S.2d 569, 573 (2010) (Quoting Fortis Fin. Servs. v. Fimat Futures USA, 290 AD2d 383, 383, 737 N.Y.S.2d 40). Here, [*5]plaintiff denies seeing the Expedia Terms & Conditions on the website before he made the purchase. In fact, plaintiff claims that the Booking Confirmation and the terms of service were emailed to him only after the purchase was completed. Cardinale Aff. at ¶12.

"In order for evidence to qualify as "documentary," it must be unambiguous, authentic, and undeniable." Id. (quoting Fontanetta v John Doe 1, 73 AD3d 78, 84-86 [2010]). "Neither affidavits, deposition testimony, nor letters are considered "documentary evidence" within the intendment of CPLR 3211 (a) (1)." Id. (citing Suchmacher v Manana Grocery, 73 AD3d 1017 [2010]; Fontanetta v John Doe 1, 73 AD3d at 85-87).

Here, the evidence submitted by defendant fails to meet this standard. Merely stating that the terms and conditions were posted conspicuously on the website does not, in and of itself, make it so.

Accordingly, defendant's motion under CPLR §3211(a)(1) fails.

CROSS-MOTION TO AMEND

Plaintiff's cross-motion to amend his complaint to switch from the form complaint to one with factual averments is GRANTED.

"Leave to amend a pleading should be freely given absent prejudice or surprise to the opposing party, unless the proposed amendment is palpably insufficient or patently devoid of merit." Etzion v. Etzion, 112 AD3d 782, 782, 978 N.Y.S.2d 57, 58 (2ND Dept. 2013) (Citing CPLR 3025[b]). Here, the court finds no prejudice against defendant if this motion is granted, nor does defendant claim prejudice in opposition. Further, the court does not find the proposed amended complaint palpably insufficient or patently devoid of merit, especially as it is very detailed in its factual allegations.

"In determining a motion for leave to amend a pleading, "a court shall not examine the legal sufficiency or merits of a pleading unless such insufficiency or lack of merit is clear and free from doubt" Id. (Quoting Faiella v. Tysens Park Apartments, LLC, 110 AD3d 1028, 975 N.Y.S.2d 71; Young v. Estate of Young, 84 AD3d 1359, 1360, 924 N.Y.S.2d 279; Lucido v. Mancuso, 49 AD3d at 227, 851 N.Y.S.2d 238).

In light of the foregoing, plaintiff's cross-motion to amend his complaint is granted, and the amended complaint must be filed within 30 days of mailing this decision to the plaintiff.

Accordingly, it is

ORDERED that defendant's motion to dismiss is DENIED

ORDERED that plaintiff's cross-motion to amend is GRANTED.

This is the decision and order of this court.

Date: 07/06/2026

Hon. Chidi A. Eze

Civil Court Judge (NYC)