Cintas Corp. No. 2 v Department of Health & Mental Hygiene of the City of N.Y. 2024 NY Slip Op 31955(U) June 5, 2024 Supreme Court, New York County Docket Number: Index No. 656110/2018 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001 (U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.656110/2018 CINTAS CORPORATION NO. 2 vs. DEPARTMENT OF HEALTH AND

Motion No. 001 Page 1 of 4 

### SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 14

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DECISION + ORDER ON MOTION INDEX NO. 656110/2018

MOTION DATE 05/23/2024

MOTION SEQ. NO. 001 CINTAS CORPORATION NO. 2 D/B/A CINTAS CORPORATION

Plaintiff,

- v
- DEPARTMENT OF HEALTH AND MENTAL HYGIENE OF THE CITY OF NEW YORK,

Defendant.

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HON. ARLENE P. BLUTH:
The following e

- filed documents, l isted by NYSCEF document number (Motion 001) 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 47, 48, 49, 50, 51, 52, 53, 54, 55
were read on this motion to/for DISMISSAL

.

Defendant’s motion to dismiss the complaint for failure to state a claim is denied.

Background

In this action for breach of contract, plaintiff, a uniform provider
, claims it entered into an
agreement with defendant in 2017 wherein plaintiff would provid e uniforms to defendant for a
term of five years. Under the terms of the contract, there were liquidated damages for early

term ination (NYSCEF Doc. No. 49
, ¶ 11). After one year, defendant terminated the contract.

This action seek s to recover the claim ed outstanding invoices and liquidated damages

.
On October 13, 2021, plaintiff filed a note of issue (NYSCEF Doc. No. 28)

. For some
reason, defendant did not make motion for summary judgment. Instead, six years after the case
began and two and a half years after the note of issue was filed, defendant now moves to dismiss

the complaint . It contends that the complaint fails to state a cause of action pursuant to CPLR INDEX NO. 656110/2018

NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 06/05/2024

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### [* 1]656110/2018 CINTAS CORPORATION NO. 2 vs. DEPARTMENT OF HEALTH AND

Motion No. 001 Page 2 of 4 3211(a)(7). Defendant argues that the City promulgates rules that control how contracts are

a warded for goods and services, and this agreement does not comport with the City’s
requirements and so it is not a valid contract

. Defendant also includes a spreadsheet logging the
invoices sent by plaintiff and contends that this log proves that defendant paid all invoices so
plaintiff’s claims for account stated, quantum meruit and unjust enrichment should be dismissed.

Moreover, defendant mainta ins that the service agreement at issue violates plaintiff’s
contract and purchase order. It also contends that the person who signed the subject service
agreement on behalf of defendant did not have the authority to do so. In fact, defendant claims

that the services contract was an illegal contract that cannot be enforced

. In opposition, plaintiff contends that the purchase order is unsigned

. Moreover, plaintiff
argues that defendant is presenting its motion as one for dismissal for failure to state a c laim but
, based on defendant’s arguments, it is actually a motion to dismiss based on documentary

evidence. Plaintiff asserts that such a motion is time

- barred and must be denied.
In reply, defendant contends the motion was properly made as the complaint does not
allege a valid and enforceable contract. Defendant argues that the terms and conditions contained
in the City’s standard service contract are available to the public and that the agreement between
the parties here does not comport with these terms

. Defendant maintains that the invoice log
proves there are no outstanding unpaid invoices.

Discussion
“On a motion to dismiss pursuant to CPLR 3211 (a)(7), w e accept the facts as alleged in
the complaint as true, accord plaintiff the benefit of every possible favorable inference, and
determine only whether the facts as alleged fit within any cognizable legal theory

. At the same
time, however, allegations consisting of bare legal conclusions . . . are not entitled to any such INDEX NO. 656110/2018

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### [* 2]656110/2018 CINTAS CORPORATION NO. 2 vs. DEPARTMENT OF HEALTH AND

Motion No. 001 Page 3 of 4 consideration” ( Conna ughton v Chipotle Mexican Grill
, Inc ., 29 NY3d 137, 141, 75 NE3d 1159
[2017] [citation and internal quotations omitted]).
As an initial matter, plaintiff is correct that this Court must ignore the portions of
defendant’s motion that appear to rely upon doc ument ary evidence and thereby implicate CPLR

3211(a)(1). Of course, the time for defendant to make such a motion under that subsection has
long passed ( s e e CPLR 3211[e]) as has the time to move for summary judgment; therefore, this
Court can only analyze this motion as one under CPLR 3211(a)(7) (which has no time limit) and
consider whether plaintiff has stated a cause of action in the complaint. 1

Here, plaintiff has stated cognizable causes of action in the complaint for a breach of

contract, account stated and, in the alternative, quasi contract theories of quantum meruit and
unjust enrichment. Defendant’s reliance on outside documents ( i.e., the City standard service

contract and the invoice log ) is not a basis to grant the instant motion. Nor is defendant’ s
contention that the person who signed the service agreement lacked authority to bind defendant.

These arguments are, in this Court’s view, an improper attempt to point to documentary evidence

under CPLR 3211(a)(1) or a misguided effort to make a summary judgment motion

- both of

which, as noted above, would be untimely

.

In short
, the instant motion is an obvious attempt to do an “end run” around the fact that
defendant failed to make a timely summary judgment mot ion. There is no question that the
complaint states valid causes of action

- plaintiff claims it had an agreement with defendant to
supply uniforms, it supplied the uniforms, and defendant didn’t pay all the bills and terminated

1 The Court recognizes that sometimes e vidence can be submitted in support of a successful CPLR 3211(a)(7) motion ( see Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 AD3d 128, 134 [1st Dept 2014] ). But the evidence submitted here does not flatly refute the claims in the complaint. Rather, the evidence merely purports to support defendant’s legal arguments that the contract is void. That is, as is discussed below, appropriate in the summary judgment context
, not in a CPLR 3211(a)(7) motion. INDEX NO. 656110/2018

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### [* 3]656110/2018 CINTAS CORPORATION NO. 2 vs. DEPARTMENT OF HEALTH AND

Motion No. 001 Page 4 of 4 the agreement early. Defend ant’ s motion reads as a CPLR 3211(a)(7) application in name only;
any plain reading of defendant’s papers make clear it is an untimely summary judgment motion.
Accordingly, it is hereby

ORDERED that defendant’s motion to dismiss the complaint for failu re to state a claim is

denied.

6/ 5 /2024 $SIG$

DATE ARLENE BLUTH, J.S.C.

CHECK ONE: CASE DISPOSED X NON

- FINAL DISPOSITION

GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE INDEX NO. 656110/2018

NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 06/05/2024

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