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

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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, listed 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 provide uniforms to defendant for a 

term of five years. Under the terms of the contract, there were liquidated damages for early 

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

This action seeks to recover the claimed 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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656110/2018 CINTAS CORPORATION NO. 2 vs. DEPARTMENT OF HEALTH AND

Motion No. 001

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3211(a)(7). Defendant argues that the City promulgates rules that control how contracts are 

awarded 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 maintains 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 claim 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), we 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 

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656110/2018 CINTAS CORPORATION NO. 2 vs. DEPARTMENT OF HEALTH AND

Motion No. 001

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consideration” (Connaughton 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 documentary 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 (see 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 motion. 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 evidence 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.

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656110/2018 CINTAS CORPORATION NO. 2 vs. DEPARTMENT OF HEALTH AND

Motion No. 001

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the agreement early. Defendant’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 failure 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

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