The opinion of the court was delivered by: Warren W. Eginton Senior United States District Judge
MEMORANDUM OF DECISION ON THIRD PARTY DEFENDANT'S MOTION TO DISMISS
Third party plaintiff NY Fuel Distributors, LLC ("NYFD") filed this action against third party defendant Sammy El Jamal for nonpayment of deliveries of motor fuel and rent. Third party defendant has moved to dismiss for failure to state a claim. For the following reasons, third party defendant's motion to dismiss will be granted.
Basic understanding of the complex underlying suit is presumed. Thus, the Court will outline only the facts relevant to the third party complaint.*fn1 For purposes of ruling on this motion to dismiss, the Court accepts the allegations of the third party complaint as true and draws all inferences in favor of third party plaintiff.
Third party plaintiff NYFD entered into contracts with several gas stations whereby NYFD agreed to supply the stations with facilities and fuel. Third party defendant Sammy El Jamal is a principal and officer of each of the gas stations. He was also the manager of third party plaintiff when the third party complaint was filed. Mr. El Jamal has since been removed as manager of NYFD.
The contracts between NYFD and the gas stations contained personal guarantee provisions whereby third party defendant personally guaranteed payment and performance by the gas stations. In the event that monies were not paid to NYFD when due, Sammy El Jamal agreed to immediately pay such monies on demand.
NYFD has substantially performed all of its obligations under the contracts. The gas stations have breached their obligations by failing to pay NYFD for motor fuel deliveries and rent, together with interest and related charges totaling more than $800,000. Third party plaintiff alleges that Sammy El Jamal has also materially breached his obligations to NYFD under the guarantee provisions by failing to remit to NYFD the payment for the motor fuels and rent, together with interest and all related charges.
Third party defendant has moved to dismiss for failure to state a claim on the grounds that
(1) no consideration exists for the guarantees at issue, (2) NYFD had no authority to commence the third party action, and (3) no demand was ever made upon the guarantees.
The function of a motion to dismiss is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). When deciding a motion to dismiss, the Court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the pleader. Hishon v. King, 467 U.S. 69, 73 (1984). The complaint must contain the grounds upon which the claim rests through factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). A plaintiff is obliged to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Third party defendant contends that no consideration exists for the guaranties at issue because no credit was ever extended by NYFD. However, the third party complaint specifically pleaded that consideration exists and stated that more than $800,000 is due for rent and the delivery of motor fuel to Tuckahoe Road, Port Chester and South Broadway stations. The Court must accept third party ...