For plaintiff: Samuel Fieldman, Esq. The Fieldman Firm, LLP.
For defendants: Matthew A. Kaplan, Esq. Cowan, Debaets et al.
DECISION AND ORDER
BARBARA JAFFE, J.
By notice of motion dated July 10, 2012, plaintiff moves pursuant to CPLR 3211 for an order dismissing defendants' counterclaims and affirmative defenses. Defendants oppose and, by notice of cross motion dated August 31, 2012, move pursuant to CPLR 3211 for an order dismissing the complaint.
By notice of motion dated January 28, 2013, plaintiff moves pursuant to CPLR 3211 and/or 3212 for an order granting summary judgment against defendants. Defendants oppose.
The motions are consolidated for disposition, and, as no discovery has yet been taken, all motions are deemed motions to dismiss.
I. PERTINENT BACKGROUND
The following facts are undisputed:
In early 2008, plaintiff and defendant Philippe Houze discussed an agreement by which plaintiff would purchase a stake in L'Epicerie, a New York corporation (the corporation), and perform certain services for it in return for compensation. Three drafts were exchanged by the parties, including the last one dated May 12, 2008, which is entitled "Partnership Agreement, " and provides as follows, as pertinent here: (1) plaintiff would purchase 100 of the corporation's shares at $1, 000 each, a 10 percent stake; (2) plaintiff would receive a share in the corporation's earnings, defined as revenues after expenses, per his share in the corporation, which would be paid as stock for 2008 and 2009, and thereafter in stock or cash at plaintiffs election; (3) Philippe remained in charge of the corporation; (4) plaintiff would be responsible for national marketing and sales, establishing a publishing business, and managerial input; and (5) plaintiff would receive a commission on new accounts and additional orders and would be reimbursed for his expenses, and after January 1, 2010, would be entitled to a salary based on the corporation's performance. The May 2008 draft further provides that it "constitutes the [parties'] full understanding and consideration, " Like the other two drafts, was never signed. (Affirmation of Samuel L. Fieldman, Esq., dated July 10, 2012 [Fieldman Aff.]).
By equal checks dated May 16, 2008 and May 28, 2008, respectively, plaintiff paid Philippe $100, 000. The memo of each check reflects that it constitutes a "stock purchase" in the corporation, Plaintiff then began working for the corporation.
After disputes arose between the parties, on or about July 27, 2008, Philippe and his wife, defendant Marie Houze, drafted a "L'Epiceriedotcom Loan Agreement, " and signed it in their personal capacities. Philippe also signed it as the corporation's CEO. The agreement "sets forth the complete Terms ... between L'Epiceriedotcom, Philippe Houze, Marie Houze (Obligors) and Gary Bunton (Lender), " and provides for: (1) $50, 000 plus interest at seven percent from June 1, 2008 to be repaid on June 1, 2009, and (2) $50, 000 plus seven percent interest from June 1, 2009 to be repaid on June 1, 2010. Security for the loan is set forth as "an unconditional promise and guarantee by the Obligor to the Lender to pay the principal and interest when due under the terms of this Loan Agreement." (Id.).
On or about March 11, 2009, Philippe advised plaintiff that he would be unable to pay the loan when due. On or about February 4, 2010, plaintiff asked Philippe to confirm that he would repay the full balance by the second due date of June 1, 2010. By letter dated February 24, 2010, Philippe replied that he would ...