RECEIVED NYSCEF: 10/16/2013
DECISION and ORDER
HON. EILEEN A. RAKOWER, J.S.C.
This is a case for breach of contract arising from defendant Stein Mart Buying Corp.'s ("Defendant") purchase of merchandise from Plaintiff Luxury Fashion Inc. ("Plaintiff). It is alleged that Plaintiff is in the business of manufacturing and selling apparel goods for resale and that Defendant is a fashion retail chain.
Presently before the Court is Defendant's motion to dismiss the Complaint, pursuant to CPLR §3211(a)(1) and (7). Plaintiff opposes.
The Complaint alleges that "[p]rior to October 15, 2012, Plaintiff and Defendant entered into an agreement in writing, i.e. the Purchase Order, whereby Plaintiff agreed to sell and deliver, and Defendant agreed to take in, accept, and pay for 4, 644 units of goods at the total price of $45, 279.00." The Complaint alleges that pursuant to the Purchase Order, on or about November 14, 2012, Plaintiff sold and delivered, and Defendant accepted and paid for 1, 476 units of the goods for a total of $14, 391.00. The Complaint further alleges that Defendant refused accept the remaining 3, 168 units of goods ordered and pay the remaining $30, 888.00, and therefore, that Defendant breached the Purchase Order.
Defendant now moves to dismiss the complaint pursuant to CPLR §3211 (a)(1) and (7).
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;
(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 [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." (Beat 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." (Guggenheimerv. 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 the legal conclusions and factual allegations of the complaint. (Rivietz v. Wolohojian, 38 A.D.3d 301 [1st Dept. 2007][citation omitted]).
Here, in support of Defendant's motion to dismiss, Defendant submits the affidavit of Susan McAbee, who is employed as a buyer by Defendant. Defendant states that Defendant's purchase orders contain express language incorporating its "Standard Terms and Condition of Purchase", which include a provision ...