EILEEN A. RAKOWER Justice
The following papers, numbered 1 to_ were read on this motion for/to
Notice of Motion/ Order to Show Cause — Affidavits — Exhibits ... 1. 2, 3
Answer — Affidavits — Exhibits__ 4
Replying Affidavits__ 5
In this action, Plaintiff Lehm Holdings, LLC ("Plaintiff or "Lehm") asserts claims against defendants involved in the restoration and conversion of a building located at 7 West 54th Street, New York, New York ("the Project"). As against defendant AKF Engineers LLP ("AKF"), Lehm asserts three causes of action: breach of the Consulting Agreement between defendant Belmont Freeman and AKF as intended third party beneficiary (second cause of action), unjust enrichment (fourth cause of action), and malpractice and gross negligence (ninth cause of action).
AKF now moves for an Order, pursuant to CPLR §§3211(a)(1) and (7), to dismiss Plaintiffs Amended Complaint as against AKF. Plaintiff opposes.
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
(7) the pleading fails to state a cause of action.
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 [ 1st Dept. ...