Preview:

[*1]


Decided on November 16, 2009
Supreme Court, Kings County

13467/08

Attorney for Plaintiff:
Chidi Eze, Esq.
Chidi Eze & Associates
255 Livingston Street, 3rd Floor
Brooklyn, NY 11217
Attorney for Defendant:

Stuart L. Sanders, Esq.
Kazlow & Kazlow
237 West 35th Street, 14th Floor
New York, NY 10001
Carolyn E. Demarest, J.
Defendant MoneyGram Payment Systems, Inc. moves to dismiss the second, third and fourth causes of action pursuant to CPLR 3211(a)(7) for failure to state a cause of action and to dismiss plaintiff's demands for punitive damages and attorney's fees. Defendant's motion to dismiss the action pursuant to CPLR 3211(a)(3) for lack of capacity or standing has been withdrawn.
BACKGROUND
The complaint alleges that plaintiff Sunday Anyika ("Anyika") purchased MoneyGram Payment Systems, Inc. ("MoneyGram") money orders valued at $9000 from Mony Communications ("Mony") on January 31 and February 1, 2008 [FN1] that were made payable to "Freightmate Int'l" by [*2]Anyika. Anyika alleges he intended to use the money orders to pay for shipping and customs duties on trailer heads exported to Nigeria by his business, Freightmate International ("Freightmate"). However, Anyika claims that when he attempted to redeem the money orders by depositing them into Freightmate's bank account, MoneyGram prevented their redemption. As a result of MoneyGram's failure to redeem the money orders, Anyika claims that he lost the merchandise for which the money orders were meant to fund shipping and customs charges, as well as future business. Anyika's complaint includes causes of action for breach of contract, infliction of emotional harm, conversion, and unjust enrichment and demands for punitive damages and attorney's fees.
In it's motion to dismiss the second, third and fourth causes of action, MoneyGram argues that Anyika has not alleged conduct sufficiently outrageous to satisfy the pleadings requirements for intentional infliction of emotional distress, the conversion claim is not viable absent an allegation of a wrong independent of the breach of contract claim, and a cause of action for unjust enrichment does not lie where the subject matter is governed by an enforceable written contract. Further, MoneyGram argues that Anyika's allegations do not satisfy the requirements for punitive damages nor allow plaintiff to recover an award of attorney's fees. Defendant Mony is in default and did not appear in response to the motion.

DISCUSSION
MoneyGram originally contended in it's motion that "Freightmate International" lacked capacity to maintain this suit because it did not appear in a search of the New York Department of State Business and Entity Database of corporations authorized to do business in New York. In opposition to the motion, Anyika provided a "Business Certificate" filed with the Kings County Clerk on August 22, 2007, indicating that he is conducting business under the name "Freightmate International" and his personal residence is the same as the business address listed in the complaint for Freightmate. However, plaintiff has not otherwise indicated that Freightmate is incorporated. Further, the business entity name "Freightmate International" does not contain the words "corporation," "incorporated," "limited," or any abbreviation of such words pursuant to Business Corporation Law

Download 2009_52298.pdf

New York Law