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FILED: NEW YORK COUNTY CLERK 11/11/2013 INDEX NO. 653476/2013
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 11/11/2013
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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PETER STERN and EXPRESS TRADE CAPITAL, INC.
Plaintiffs, Index No. 653476/2013
-against-
ATTORNEY’S AFFIRMATION
IN SUPPORT OF MOTION
TO DISMISS
OLEG ARDACHEV, AIR CARGO SERVICES L.L.C.,
DELEX INC., DELEX AIR CARGO, LLC, a Delaware
limited liability company, and DELEX AIR CARGO, LLC.
a Washington limited liability company.
Defendant.
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Robert Bondar, Esq., an attorney at law duly admitted to practice before the Courts in the State
of New York, hereby affirms the following to be true under the penalties of perjury:
1. I am the attorney for the Defendants OLEG ARDACHEV, AIR CARGO SERVICES
L.L.C., DELEX INC., and DELEX AIR CARGO, LLC (collectively, the “Defendants”) .
2. As such, I am familiar with the facts and circumstances underlying this cause of action
based upon communications with the Defendants and review of the contents of the file
kept and maintained by the undersigned’s office.
3. I submit this affirmation in support of Defendants’ motion to dismiss first three counts of
action of Plaintiffs’ complaint on the grounds that Plaintiffs had failed to state
recognizable causes of action and defense found upon documentary evidence.
4. Specifically, Plaintiff failed to plead the necessary elements of breach of contract claim.
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5. More importantly, the purported “Sale agreement”, annexed to Plaintiffs’ Complaint as
Exhibit A, is not a legally binding document and is unenforceable due to it severe lack of
specific terms and uncertainty as to its subject matter.
6. Plaintiffs filed the Complaint against the Defendants in New York County Supreme
Court on October 8, 2013 by e-filing through NYSECF system. In the Complaint,
Plaintiffs assert claims sounding in what appears to be a breach of contract, unjust
enrichment, and wrongful transfer of corporate assets. See Exhibit 1.
7. Plaintiffs’ attorney served the Complaint with Exhibit A, the alleged “Sale Agreement”,
upon the Defendants’ attorney by e-mail after the undersigned consented to such manner
of service. See.
8. Plaintiffs’ attorney has not e-filed Exhibit 1-a, presumingly for inadvertence, however it
is referred in Paragraph 23 of the Complaint and had been served upon the Defendants’
counsel as the exhibit to the Complaint, see e-mail of David Estrakh dated 10/10/13
annexed to Exhibit 1-a.
9. In the First and Second Causes of Action of the Complaint, Plaintiffs allege that
Defendant Ardashev breached the alleged “Sale Agreement”, whereby Ardashev
allegedly purchased Plaintiff’s 50% membership interest of the Defendant Air Cargo
Services, LLC (‘ACS’).
10. In the Third Cause of Action, Plaintiff Stern alleges that he has not received “profit,
salary, or distributions” from ACS because he relied on the sum “agreed to in the terms
of the Sale Agreement”, see Exhibit 1 at ¶40, thereby again indicating reliance on the
written document attached to the Complaint to allege damages.
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11. However, Defendants contend that the purported “Sale Agreement” is not legally binding
and is unenforceable because the agreement as written lacks certainty and specificity as
to the terms thereof.
12. Therefore, as set forth below, Plaintiffs’ First, Second, and Third Causes of Action must
be dismissed for failing to state a cause of action and based upon the documentary
evidence, the “Sale Agreement” in question, which provides a complete defense leaving
no triable issues.
LEGAL ARGUMENT
I. Motion to dismiss Plaintiffs’ First, Second, and Third Causes of Action
should be granted pursuant to CPLR 3211(a)(7) because Plaintiffs’
complaint fails to state a cause of action.
13. “In determining a motion to dismiss an action for failure to make out a prima facie case,
the plaintiff’s evidence must be accepted as true… The motion should only be granted if
there is no rational process by which a fact-finder could find for the plaintiff as against
the moving defendant.” Chan v. Chan, 193 A.D.2d 575, 597 N.Y.S.2d 422 (2 Dept.
1993).
14. In ruling on the motion, the court decides whether the plaintiff can succeed on any
reasonable view of the facts as stated and inferred. Campaign for Fiscal Equity, Inc. v.
State, 86 N.Y.2d 307, 631 N.Y.S.2d 565 (1995). “While factual allegations contained in a
complaint should be accorded a favorable inference, bare legal conclusions and
inherently incredible facts are not entitled to preferential consideration”. Sud v. Sud,
211 A.D.2d 423 (1st Dept. 1995).
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a. Plaintiffs’ First, Second, and Third Causes of Action must be dismissed because
Plaintiffs failed to plead the elements of breach of contract.
15. It is a basic rule of pleading that in order to state a cause of action, all elements of a cause
of action must be pled. In GS Agrifuels Corp. v. Chaykin, Index No. 101401/2009 (Sup.
Ct. N.Y. County August 3, 2010), the Commercial Division provided practitioners with a
reminder that failing to plead all elements of a claim will result in dismissal for failure to
state a cause of action.
16. In Chaykin, Justice Richard B. Lowe III dismissed all six causes of action in plaintiff’s
complaint pursuant to CPLR 3211(a)(7) finding that plaintiff failed to properly state any
causes of action. Of particular note, Justice Lowe found that plaintiff failed to plead two
of the four necessary elements for breach of contract. As discussed by the court, the
elements of a breach of contract claim in New York are “formation of a contract between
the parties, performance by the plaintiff, the defendant’s failure to perform, and resulting
damage.” Chaykin, at pp. 4-5 (quoting Flomenbaum v. New York Univ., 71 A.D. 3d 80,
91 (1 Dept. 2009) (citing Clearmont Prop., LLC v. Eisner, 58 A.D.3d 1052, 1055 (1 Dept.
2009)).
17. First, the Chaykin Court found that plaintiff failed to plead the necessary element that it
performed its own obligations under the agreement at issue. Indeed, the court noted that
nowhere in the complaint did plaintiff expressly state that it performed its own
contractual obligations. This oversight alone made the breach of contract action improper
as pled. Second, the Court found that plaintiff failed to properly allege that defendants
breached the agreement at issue. The Court found that even though plaintiff listed the
sections of the agreement allegedly breached by defendants, plaintiff failed to allege how
defendants actually breached those provisions. Since plaintiff failed to properly plead two
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of the four elements of a breach of contract claim, the Court dismissed the claim pursuant
to CPLR 3211(a)(7) for failure to state a cause of action.
18. Here, Plaintiffs similarly fail to plead the necessary elements of breach of contract. First,
according to Chaykin and Flomenbaum’s decisions, the complaint must assert enough
facts to support the existence of the basic elements of a breach of contract claim,
including a valid and binding agreement supported by consideration, breach by one party,
and damages.
19. Plaintiffs, however, fail to plead any such facts in their complaint.
20. In fact, other than bold conclusory statements that “plaintiffs and defendants entered into
a written sale agreement”, “defendants have not performed their obligations”, “the Sale
Agreement is an enforceable agreement”, Exhibit 1 at ¶23, 28, 31, Plaintiffs’ fail to plead
any factual allegations sufficient to establish the existence of a binding and enforceable
contract between the parties to any degree of rationality.
21. As set forth above, Defendants contend that Plaintiffs’ failed to set forth the facts
necessary to support the existence of an enforceable contract and that Plaintiffs failed to
plead the basic elements of a breach of contract claim rendering Plaintiff’s complaint
fatally defective and susceptible to this motion to dismiss.
22. Plaintiffs offer only the legal conclusions to support its allegations of enforceable
contract - but bold legal conclusions alone, without any factual support, are plainly
insufficient and cannot be “entitled to preferential consideration” by this Court, see Sud,
at 424.
23. Therefore, Defendants’ motion to dismiss should be granted in all respects.
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b. Plaintiffs’ First, Second, and Third Causes of Action must be dismissed pursuant
to CPLR 3211(a)(1), because there is no rational process by which a fact-finder
could find that the alleged Sale Agreement is a binding and enforceable contract
due to lacking material terms.
24. Plaintiffs cannot cure the pleading defects in their complaint by attaching the purported
“Sale Agreement” to their unverified Complaint.
25. Firstly, even a cursory examination of the document in question reveals that the plain
meaning of the document, derived from its four corners, does not support Plaintiffs’
assertion that there ever existed any enforceable agreement between the parties under the
terms alleged in the Complaint.
26. The omissions contained in Exhibit A are obvious and glaring. Other than Plaintiffs’ own
assertions that Exhibit A is a Sale Agreement, the actual words “Sale Agreement” do not
appear anywhere on the document itself.
27. The document is completely missing the subject matter of the purported agreement. The
document does not contain anywhere the name of the business sold, “Air Cargo Services,
LLC”, what part or portion of ACS was to be sold, the identities of the seller and the
buyer, or whether anything would be left to future discussions or negotiations.
28. Defendants assert that the document annexed as Exhibit A to Plaintiffs’ Complaint cannot
be a legally binding contract - because it is wholly void of any specific material terms.
Without such specificity as to the contract’s material terms and its abject uncertainty, the
Court cannot interpret and enforce the terms of the agreement.
29. The document contains only the date “Jan. 16, 2009”, the word “Agreed:”, a phantom
payment schedule without a single reference as to who has to make the payments, for
what, and to whom, and three individual signatures.
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30. Under such circumstances, the courts have declined to enforce contracts where “the void
is too great, the omissions are too noticeable and the risk of ensnaring a party in a set of
contractual obligations that he never knowingly assumed is too serious”. Mocca Lounge
v. Misak, 94 A.D.2d 761, 462 N.Y.S.2d 704 (2 Dept. 1983).
31. In Joseph J. Martin, Jr., Delicatessen v. Schumacher, 436 N.Y.S.2d 247, 417 N.E.2d
541(1981), New York Court of Appeals succinctly stated “Before the power of law can
be invoked to enforce a promise, it must be sufficiently certain and specific so that
what was promised can be ascertained. Otherwise, a court, in intervening, would be
imposing its own conception of what the parties should or might have undertaken, rather
than confining itself to the implementation of a bargain to which they have mutually
committed themselves. Thus, definiteness as to material matters is of the very essence in
contract law. Impenetrable vagueness and uncertainty will not do.” citing 1 Corbin,
Contracts, s 95, p. 394; 6 Encyclopedia of New York Law, Contracts, s 301; Restatement,
Contracts 2d, s 32, Comment (a).
32. Exhibit A attached to the Complaint contains no such “definiteness as to material
matters”, which could assist the Court in deciding whether Defendants’ ever intended to
purchase Plaintiff’s interest in ACS and under what terms.
33. Similarly, it is impossible to determine whether Defendant Ardashev ever intended be
legally bound by this “agreement”. The hand-written “agreement” fails to name even so
much as the parties thereto, therefore rendering it impossible to discern the identities of
the buyer or the seller from the four corners of the “agreement”.
34. There appears to be “no rational process by which a fact-finder could find for the
plaintiff”, see Chan at 576, that the “Sale Agreement” annexed as Exhibit A to Plaintiffs’
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complaint is in fact an enforceable and binding contract between the parties for Plaintiffs’
sale of 50% membership interest in ACS for $400,000.
35. Therefore, the Defendants’ motion should be granted in all respects.
WHEREFORE, it is respectfully requested that an Order be issued pursuant to CPLR
§3211(a)(7), dismissing Plaintiffs’ First, Second, and Third Causes of Action of the
Complaint and granting such other and further relief as to this Court may deem just and
proper.
DATED: Brooklyn, New York Respectfully submitted,
November 11, 2013
By: /s/ Robert Bondar
Robert Bondar, Esq.
Attorney for Plaintiffs
28 Dooley Street, 3rd floor
Brooklyn, New York 11235
Telephone (347) 462-3262
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FILED: NEW YORK COUNTY CLERK 11/11/2013 INDEX NO. 653476/2013 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 11/11/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------X PETER STERN and EXPRESS TRADE CAPITAL, INC. Plaintiffs, Index No. 653476/2013 -against- ATTORNEY’S AFFIRMATION IN SUPPORT OF MOTION TO DISMISS OLEG ARDACHEV, AIR CARGO SERVICES L.L.C., DELEX INC., DELEX AIR CARGO, LLC, a Delaware limited liability company, and DELEX AIR CARGO, LLC. a Washington limited liability company. Defendant. ------------------------------------------------------------------------X Robert Bondar, Esq., an attorney at law duly admitted to practice before the Courts in the State of New York, hereby affirms the following to be true under the penalties of perjury: 1. I am the attorney for the Defendants OLEG ARDACHEV, AIR CARGO SERVICES L.L.C., DELEX INC., and DELEX AIR CARGO, LLC (collectively, the “Defendants”) . 2. As such, I am familiar with the facts and circumstances underlying this cause of action based upon communications with the Defendants and review of the contents of the file kept and maintained by the undersigned’s office. 3. I submit this affirmation in support of Defendants’ motion to dismiss first three counts of action of Plaintiffs’ complaint on the grounds that Plaintiffs had failed to state recognizable causes of action and defense found upon documentary evidence. 4. Specifically, Plaintiff failed to plead the necessary elements of breach of contract claim. 1 5. More importantly, the purported “Sale agreement”, annexed to Plaintiffs’ Complaint as Exhibit A, is not a legally binding document and is unenforceable due to it severe lack of specific terms and uncertainty as to its subject matter. 6. Plaintiffs filed the Complaint against the Defendants in New York County Supreme Court on October 8, 2013 by e-filing through NYSECF system. In the Complaint, Plaintiffs assert claims sounding in what appears to be a breach of contract, unjust enrichment, and wrongful transfer of corporate assets. See Exhibit 1. 7. Plaintiffs’ attorney served the Complaint with Exhibit A, the alleged “Sale Agreement”, upon the Defendants’ attorney by e-mail after the undersigned consented to such manner of service. See. 8. Plaintiffs’ attorney has not e-filed Exhibit 1-a, presumingly for inadvertence, however it is referred in Paragraph 23 of the Complaint and had been served upon the Defendants’ counsel as the exhibit to the Complaint, see e-mail of David Estrakh dated 10/10/13 annexed to Exhibit 1-a. 9. In the First and Second Causes of Action of the Complaint, Plaintiffs allege that Defendant Ardashev breached the alleged “Sale Agreement”, whereby Ardashev allegedly purchased Plaintiff’s 50% membership interest of the Defendant Air Cargo Services, LLC (‘ACS’). 10. In the Third Cause of Action, Plaintiff Stern alleges that he has not received “profit, salary, or distributions” from ACS because he relied on the sum “agreed to in the terms of the Sale Agreement”, see Exhibit 1 at ¶40, thereby again indicating reliance on the written document attached to the Complaint to allege damages. 2 11. However, Defendants contend that the purported “Sale Agreement” is not legally binding and is unenforceable because the agreement as written lacks certainty and specificity as to the terms thereof. 12. Therefore, as set forth below, Plaintiffs’ First, Second, and Third Causes of Action must be dismissed for failing to state a cause of action and based upon the documentary evidence, the “Sale Agreement” in question, which provides a complete defense leaving no triable issues. LEGAL ARGUMENT I. Motion to dismiss Plaintiffs’ First, Second, and Third Causes of Action should be granted pursuant to CPLR 3211(a)(7) because Plaintiffs’ complaint fails to state a cause of action. 13. “In determining a motion to dismiss an action for failure to make out a prima facie case, the plaintiff’s evidence must be accepted as true… The motion should only be granted if there is no rational process by which a fact-finder could find for the plaintiff as against the moving defendant.” Chan v. Chan, 193 A.D.2d 575, 597 N.Y.S.2d 422 (2 Dept. 1993). 14. In ruling on the motion, the court decides whether the plaintiff can succeed on any reasonable view of the facts as stated and inferred. Campaign for Fiscal Equity, Inc. v. State, 86 N.Y.2d 307, 631 N.Y.S.2d 565 (1995). “While factual allegations contained in a complaint should be accorded a favorable inference, bare legal conclusions and inherently incredible facts are not entitled to preferential consideration”. Sud v. Sud, 211 A.D.2d 423 (1st Dept. 1995). 3 a. Plaintiffs’ First, Second, and Third Causes of Action must be dismissed because Plaintiffs failed to plead the elements of breach of contract. 15. It is a basic rule of pleading that in order to state a cause of action, all elements of a cause of action must be pled. In GS Agrifuels Corp. v. Chaykin, Index No. 101401/2009 (Sup. Ct. N.Y. County August 3, 2010), the Commercial Division provided practitioners with a reminder that failing to plead all elements of a claim will result in dismissal for failure to state a cause of action. 16. In Chaykin, Justice Richard B. Lowe III dismissed all six causes of action in plaintiff’s complaint pursuant to CPLR 3211(a)(7) finding that plaintiff failed to properly state any causes of action. Of particular note, Justice Lowe found that plaintiff failed to plead two of the four necessary elements for breach of contract. As discussed by the court, the elements of a breach of contract claim in New York are “formation of a contract between the parties, performance by the plaintiff, the defendant’s failure to perform, and resulting damage.” Chaykin, at pp. 4-5 (quoting Flomenbaum v. New York Univ., 71 A.D. 3d 80, 91 (1 Dept. 2009) (citing Clearmont Prop., LLC v. Eisner, 58 A.D.3d 1052, 1055 (1 Dept. 2009)). 17. First, the Chaykin Court found that plaintiff failed to plead the necessary element that it performed its own obligations under the agreement at issue. Indeed, the court noted that nowhere in the complaint did plaintiff expressly state that it performed its own contractual obligations. This oversight alone made the breach of contract action improper as pled. Second, the Court found that plaintiff failed to properly allege that defendants breached the agreement at issue. The Court found that even though plaintiff listed the sections of the agreement allegedly breached by defendants, plaintiff failed to allege how defendants actually breached those provisions. Since plaintiff failed to properly plead two 4 of the four elements of a breach of contract claim, the Court dismissed the claim pursuant to CPLR 3211(a)(7) for failure to state a cause of action. 18. Here, Plaintiffs similarly fail to plead the necessary elements of breach of contract. First, according to Chaykin and Flomenbaum’s decisions, the complaint must assert enough facts to support the existence of the basic elements of a breach of contract claim, including a valid and binding agreement supported by consideration, breach by one party, and damages. 19. Plaintiffs, however, fail to plead any such facts in their complaint. 20. In fact, other than bold conclusory statements that “plaintiffs and defendants entered into a written sale agreement”, “defendants have not performed their obligations”, “the Sale Agreement is an enforceable agreement”, Exhibit 1 at ¶23, 28, 31, Plaintiffs’ fail to plead any factual allegations sufficient to establish the existence of a binding and enforceable contract between the parties to any degree of rationality. 21. As set forth above, Defendants contend that Plaintiffs’ failed to set forth the facts necessary to support the existence of an enforceable contract and that Plaintiffs failed to plead the basic elements of a breach of contract claim rendering Plaintiff’s complaint fatally defective and susceptible to this motion to dismiss. 22. Plaintiffs offer only the legal conclusions to support its allegations of enforceable contract - but bold legal conclusions alone, without any factual support, are plainly insufficient and cannot be “entitled to preferential consideration” by this Court, see Sud, at 424. 23. Therefore, Defendants’ motion to dismiss should be granted in all respects. 5 b. Plaintiffs’ First, Second, and Third Causes of Action must be dismissed pursuant to CPLR 3211(a)(1), because there is no rational process by which a fact-finder could find that the alleged Sale Agreement is a binding and enforceable contract due to lacking material terms. 24. Plaintiffs cannot cure the pleading defects in their complaint by attaching the purported “Sale Agreement” to their unverified Complaint. 25. Firstly, even a cursory examination of the document in question reveals that the plain meaning of the document, derived from its four corners, does not support Plaintiffs’ assertion that there ever existed any enforceable agreement between the parties under the terms alleged in the Complaint. 26. The omissions contained in Exhibit A are obvious and glaring. Other than Plaintiffs’ own assertions that Exhibit A is a Sale Agreement, the actual words “Sale Agreement” do not appear anywhere on the document itself. 27. The document is completely missing the subject matter of the purported agreement. The document does not contain anywhere the name of the business sold, “Air Cargo Services, LLC”, what part or portion of ACS was to be sold, the identities of the seller and the buyer, or whether anything would be left to future discussions or negotiations. 28. Defendants assert that the document annexed as Exhibit A to Plaintiffs’ Complaint cannot be a legally binding contract - because it is wholly void of any specific material terms. Without such specificity as to the contract’s material terms and its abject uncertainty, the Court cannot interpret and enforce the terms of the agreement. 29. The document contains only the date “Jan. 16, 2009”, the word “Agreed:”, a phantom payment schedule without a single reference as to who has to make the payments, for what, and to whom, and three individual signatures. 6 30. Under such circumstances, the courts have declined to enforce contracts where “the void is too great, the omissions are too noticeable and the risk of ensnaring a party in a set of contractual obligations that he never knowingly assumed is too serious”. Mocca Lounge v. Misak, 94 A.D.2d 761, 462 N.Y.S.2d 704 (2 Dept. 1983). 31. In Joseph J. Martin, Jr., Delicatessen v. Schumacher, 436 N.Y.S.2d 247, 417 N.E.2d 541(1981), New York Court of Appeals succinctly stated “Before the power of law can be invoked to enforce a promise, it must be sufficiently certain and specific so that what was promised can be ascertained. Otherwise, a court, in intervening, would be imposing its own conception of what the parties should or might have undertaken, rather than confining itself to the implementation of a bargain to which they have mutually committed themselves. Thus, definiteness as to material matters is of the very essence in contract law. Impenetrable vagueness and uncertainty will not do.” citing 1 Corbin, Contracts, s 95, p. 394; 6 Encyclopedia of New York Law, Contracts, s 301; Restatement, Contracts 2d, s 32, Comment (a). 32. Exhibit A attached to the Complaint contains no such “definiteness as to material matters”, which could assist the Court in deciding whether Defendants’ ever intended to purchase Plaintiff’s interest in ACS and under what terms. 33. Similarly, it is impossible to determine whether Defendant Ardashev ever intended be legally bound by this “agreement”. The hand-written “agreement” fails to name even so much as the parties thereto, therefore rendering it impossible to discern the identities of the buyer or the seller from the four corners of the “agreement”. 34. There appears to be “no rational process by which a fact-finder could find for the plaintiff”, see Chan at 576, that the “Sale Agreement” annexed as Exhibit A to Plaintiffs’ 7 complaint is in fact an enforceable and binding contract between the parties for Plaintiffs’ sale of 50% membership interest in ACS for $400,000. 35. Therefore, the Defendants’ motion should be granted in all respects. WHEREFORE, it is respectfully requested that an Order be issued pursuant to CPLR §3211(a)(7), dismissing Plaintiffs’ First, Second, and Third Causes of Action of the Complaint and granting such other and further relief as to this Court may deem just and proper. DATED: Brooklyn, New York Respectfully submitted, November 11, 2013 By: /s/ Robert Bondar Robert Bondar, Esq. Attorney for Plaintiffs 28 Dooley Street, 3rd floor Brooklyn, New York 11235 Telephone (347) 462-3262 8