DECISION AND ORDER
EILEEN A. RAKOWER, J.S.C.
This action arises from Defendants' alleged non-payment of a Promissory Note with Personal Guaranty and Security Agreement executed in conjunction with an Agreement of Sale date December 10, 2010. The Complaint alleges that on January 13, 2011, defendant Gans executed a Promissory Note, whereby Gans promised to pay Plaintiff $250, 000 at the rate of 6% per annum in monthly payments of $18, 534.00, commencing on April 1, 2011, through June 1, 2012, as well as a Security Agreement, where Gans pledged to Plaintiff certain property as security for the Note. The Complaint further alleges that defendant Leba, a managing member of Gans, personally signed a Guaranty, guaranteeing the payment of the Promissory Note. The Complaint alleges that Defendants made payments through October 2011, and failed to make any payments thereafter, leaving a balance due to Plaintiff of $22, 500.
The Complaint alleges that on or about December 10, 2010, the parties executed an Agreement of Sale whereby Plaintiff agreed to sell and Defendants agreed to purchase the assets of a business known a 69 Gansevoort Restaurant, Inc., and that Agreement of Sale refers and incorporates the Promissory Note, Personal Guaranty, and Security Agreement. Plaintiff alleges that under the Agreement of Sale, Gans, as purchaser, and Laba, as the guarantor, were obligated to pay to Plaintiff $67, 500 for the transfer of the security down payment of the lease agreement to be transferred and that Defendants failed to make the required payment. In this action, Plaintiff alleges that it has exercised the acceleration clause of the Promissory Note and demands the total principal and interest under the Note and Agreement of Sale. The Complaint alleges four causes of action: breach of contract, promissory estoppel, unjust enrichment, and declaratory judgment.
Attached to the Complaint as exhibits is the referenced Promissory Note dated January 13, 2011, in which Gans promises to pay Plaintiff, David Graziano, Nick Neocleous, Robert Maltam and Corey Kumpulaninien, $250, 000; a Guaranty, dated January 13, 2011, executed by Leba to Plaintiff; a Security Agreement dated January 13, 2011 between Gans and Plaintiff, Graziano, Malta, Lane, and Smalls; and an Agreement of Sale.
Defendants move for an Order dismissing this action: (i) pursuant to CPLR §3211(a)(3), because Plaintiff does not have legal capacity to sue, (ii) pursuant to CPLR §321 l(a)(10) because the court should not proceed in the absence of persons who should be persons, and (iii) pursuant to CPLR §3211 because Plaintiffs failed to state a cause of action and because there is a defense based on documentary evidence. Defendant submits the affidavit of Remi Laba.
CPLR §3211 provides, in relevant part:
(a) a party may move for judgment dismissing one or more causes of action asserted against him on the ground that:
(1) a defense is founded upon documentary evidence; or
(3) the party asserting the cause of action has not legal capacity to sue; or
(7) the pleading fails to state a cause of action; or
(10) the court should not proceed in the absence of a person who should be a party.
In determining whether dismissal is warranted for failure to state a cause of action, the court must "accept the facts alleged as true ... and determine simply whether the facts alleged fit within any cognizable legal theory." (People ex rel. Spitzer v. Sturm, Ruger & Co., Inc., 309 A.D.2d 91 [ 1 st Dept. 2003]) (internal citations omitted) (see CPLR §3211 [a]).
On a motion to dismiss pursuant to CPLR §3211(a)(1) "the court may grant dismissal when documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." (Beal Sav. Bank v. Sommer, 8 N.Y.3d 318, 324 ) (internal citations omitted). "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 ) (emphasis added). A movant is entitled to dismissal under CPLR §3211 when his or her evidentiary submissions flatly contradict ...