Impark HSW LLC v RFR Realty LLC 2026 NY Slip Op 30721(U) February 26, 2026 Supreme Court, New York County Docket Number: Index No. 659778/2024 Judge: Emily Morales-Minerva Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.6597782024.NEW_YORK.001.LBLX038_TO.html[03/10/2026 3:45:55 PM] FILED: NEW YORK COUNTY CLERK 02/27/2026 04:41 PM INDEX NO. 659778/2024 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 02/27/2026
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 42M --------------------X
IMPARK HSW LLC,IMPERIAL PARKING {U.S.), LLC, INDEX NO. 659778/2024
Plaintiffs, MOTION DATE 04/30/2025 -v- MOTION SEQ. NO. 001 RFR REALTY LLC, RFD THIRD AVENUE I ASSOCIATES LLC, EAST 78TH GARAGE LLC
Defendants. DECISION+ ORDER ON MOTION --------------------X
The following e-filed documents, listed by NYSCEF document number {Motion 001) 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 were read on this motion to/for DISMISSAL
APPEARANCES:
Herlihy LLP, White Plains, New York {Matthew Hannon Herlihy, Esq., of counsel) for plaintiffs.
Charles E. Boulbol, Brooklyn, New York (Charles E. Boulbol. Esq., of counsel) for defendants RFR REALTY LLC and RFD THIRD AVENUE I ASSOCIATES LLC.
HON. EMILY MORALES-MINERVA:
In this action sounding in breach of contract, account
stated, and unjust enrichment, defendants RFR REALTY LLC and RFD
THIRD AVENUE I ASSOCIATES LLC 1 move, by pre-answer notice of
motion (sequence number 01), for an order dismissing the
complaint based upon documentary evidence {see CPLR § 3211 [a]
1 Defendant EAST 78TH GARAGE LLC has not answered or otherwise appeared in the instant action. 659778/2024 IMPARK HSW LLC ET AL vs. RFR REALTY LLC ET AL Page 1 of 20 Motion No. 001
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[1]), and/or due to plaintiffs' failure to state a cause of
action {see CPLR § 3211 [a] [7]).
Plaintiffs IMPARK HSW LLC and IMPERIAL PARKING {U.S.), LLC
oppose and cross-move, by notice of motion (sequence number
unassigned), for leave to amend its complaint, pursuant to
CPLR § 3025. Defendants submit opposition to the cross-motion.
For the reasons set forth below, defendants' motion to
dismiss is granted entirely, and plaintiffs' cross-motion to
amend the complaint is denied.
BACKGROUND
Defendant RFD THIRD AVENUE I ASSOCIATES LLC (RFD Third
Avenue) was the owner of a parking garage located at 188 East
78th Street, New York, New York {premises) (see New York State
Court Electronic Filing System [NYSCEF] Doc. No. 01, complaint).
On December 08, 2003, plaintiff IMPARK HSW LLC (garage manager)
and RFD Third Avenue entered into a three-year garage management
agreement (Agreement), pursuant to which garage manager agreed
to provide parking management services at the premises (see
NYSCEF Doc. No. 03, exhibit A to complaint, garage management
agreement between defendant RFD THIRD AVENUE I ASSOCIATES LLC,
as owner, and plaintiff IMPARK HSW LLC, as garage manager, dated
December 08, 2003, and terminating on December 31, 2006). In 65977812024 IMPARK HSW LLC ET AL vs. RFR REALTY LLC ET AL Page 2of20 Motion No. 001
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exchange, RFD Third Avenue agreed to compensate garage manager
in accordance with the terms of the Agreement (see id., at§ 12
["Management Fee"]).
Further, the Agreement provides:
"Owner shall have no personal liability under this Agreement. Garage Manager shall look solely to Owner's estate and interest in the [premises] for the satisfaction of any right of Garage Manager for the collection of a judgment or other judicial process or arbitration award requiring the payment of money by owner, subject, however, to the prior rights of any Superior Mortgagee or Superior Lessor, and no other property or assets of Owner, Owner's agents, incorporators, shareholders, officers, directors, partners, principals (disclosed or undisclosed) or affiliates shall be subject to levy, lien, execution, attachment, or other enforcement procedure for the satisfaction of Garage Manager's rights and remedies under or with respect to this Agreement, the relationship of Owner and Garage Manager hereunder or under law, or Garage Manager's use and occupancy of the Garage or any other liability of Owner to Garage Manager"
(id., at § 21.1 ["Exculpation; Damage"]).
On that same date, garage manager and RFD Third Avenue
executed a written modification of the Agreement in the form of
a letter (see NYSCEF Doc. No. 03, exhibit A to complaint,
modification letter between RFD Third Avenue and garage manager,
also dated December 08, 2003). The letter modified certain
terms of the Agreement not relevant to the instant action.
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On April 22, 2004, RFD Third Avenue conveyed its interest
in the premises, by deed, to non-appearing defendant EAST 78TH
GARAGE LLC (East 78th Garage) (see NYSCEF Doc. No. 10, exhibit B
to defendants' motion to dismiss, condominium garage unit deed,
dated April 22, 2004). The deed provides, in relevant part:
"THIS INDENTURE, made as of April 22, 2004 between [RFD Third Avenue], a New York limited liability company, having an office at 400 Park Avenue, New York, New York 10022 ("Grantor") and [defendant] EAST 78TH GARAGE LLC, having an address at 400 Park Avenue, New York, New York 10022 ("Grantee").
"That the Grantor, in consideration of Ten and 00/100 ($10.00) Dollars [] does hereby grant and release unto the Grantee, the heirs or successors and assigns of the Grantee, forever: The Condominium Unit ("Unit") known as the Garage Unit in the building ("Building") known as The Empire Condominium ("Condominium") and by the street number 188 East 78th Street II
(id., [emphasis in original]).
The deed is executed by Trevor Davis, who served as
president of both RFD Third Avenue and East 78th Garage (see
id., signature page [signature of Trevor Davis, president, on
behalf of RFD Third Avenue as grantor, and signature of Trevor
Davis, president, on behalf of defendant East 78th Garage as
grantee]). The deed was thereafter duly recorded in the Office
of the City Register on August 17, 2004, under CRFN number
2004000511422 (see id. [NYC Department of Finance, Office of the
City Register, recording and endorsement cover page]). 659778/2024 IMPARK HSW LLC ET AL vs. RFR REALTY LLC ET AL Page4 of 20 Motion No. 001
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Thereafter, notwithstanding that RFD Third Avenue no longer
owned the premises, garage manager and RFD Third Avenue executed
an amendment to the Agreement (Amended Agreement}, which
extended the term of the Agreement for an additional five years,
through December 31, 2011 (see NYSCEF Doc. No. 03, exhibit A to
the complaint, First Amendment of Garage Management Agreement
between RFD Third Avenue and garage manager, dated January 01,
2007, and terminating on December 31, 2011}. Otherwise, the
Agreement remained unmodified (see id.).
Defendant RFR REALTY LLC (RFR Realty) executed the Amended
Agreement "as agent" of RFD Third Avenue (see id. [signature of
"Mark J. Granata, Jr., President, [defendant] RFR Realty LLC, as
Agent" of RFD Third Avenue]}.
Thirteen years after the Agreement expired, garage manager
and plaintiff IMPERIAL PARKING (U.S.}, LLC 2 (collectively,
plaintiffs} commenced the instant action against RFD Third
Avenue, RFR Realty, and East 78th Garage, asserting causes of
action for breach of contract, account stated, and unjust
enrichment (see NYSCEF Doc. No. 01, complaint, filed on December
20, 2024}. Plaintiffs allege that as of December 19, 2024,
"defendants have willfully refused to respond and/or make
payment of the outstanding balance of [$86,315.24] due and owed
2 The complaint fails to explain plaintiff IMPERIAL PARKING (U.S.), LLC's relationship to this action. 659778/2024 IMPARK HSW LLC ET AL vs. RFR REALTY LLC ET AL Page 5 of 20 Motion No. 001
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to plaintiffs" (id., at 113-14 [emphasis added]). The
complaint, however, contains no factual allegations describing
the parties' dealings during the intervening thirteen-year
period, nor does it specify the time period during which the
alleged balance of $86,315.24 accrued.
Now, RFD Third Avenue and RFR Realty (collectively, moving
defendants) move, by pre-answer notice of motion (sequence
number 01), for an order dismissing the complaint pursuant to
CPLR § 3211 (a) (1), based on documentary evidence, and/or
pursuant to CPLR § 3211 (a) (7), for failure to state a cause of
action (see NYSCEF Doc. No., 07, notice of motion to dismiss).
In support of their motion, moving defendants argue that
dismissal is warranted because: (1) the Agreement expired by its
own terms on December 31, 2011, thereby precluding plaintiffs'
claims; (2) section 21 of the Agreement contains an exculpatory
clause, and because RFD Third Avenue conveyed its interest in
the premises to East 78th Garage in 2004, plaintiffs are barred
from asserting any claims against RFD Third Avenue; and
(3) plaintiffs cannot recover against RFR Realty because "a mere
disclosed agent [such as RFR Realty] is not liable to plaintiffs
under the [Agreement]" (NYSCEF Doc. No. 11, memorandum of law in
support of motion to dismiss).
Plaintiffs oppose the motion and cross-move for leave to
amend its complaint. In opposition, plaintiffs conclusorily 659778/2024 IMPARK HSW LLC ET AL vs. RFR REALTY LLC ET AL Page 6 of 20 Motion No. 001
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allege -- for the first time -- that "defendants created a shell
corporation [defendant East 78th Garage], creating a de facto
merger, in an attempt to shield defendants from liability under
these very circumstances" (NYSCEF Doc. No. 14, plaintiffs'
affirmation in opposition to defendants' motion to dismiss and
in support of cross-motion). Plaintiffs do not, however, submit
a proposed amended pleading.
ANALYSIS
PLAINTIFFS' CROSS-MOTION TO AMEND ITS COMPLAINT
CPLR § 3025 (b) provides that a motion to amend "shall be
accompanied by the proposed pleading or supplemental pleading
clearly showing the changes or additions to be made to the
pleading." Failure to submit the proposed pleading as required
by CPLR § 3025 (b) warrants denial of leave to amend (Anonymous
v Anonymous, 167 AD3d 527, 528 [1st Dept 2018] [holding that
"the husband's request for leave to amend the complaint [] was
properly denied. The husband failed to submit a copy of the
proposed pleading with the motion"]; see also Dragon Head LLC v
Elkman, 102 AD3d 552, 553 [1st Dept 2013) [stating the same
principle]; Pressley v City of New York, 233 AD3d 932, 939 [2d
Dept 2024] [stating the same]). 659778/2024 IMPARK HSW LLC ET AL vs. RFR REALTY LLC ET AL Page 7 of20 Motion No. 001
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Here, plaintiffs fail to submit the proposed amended
pleading and do not provide any information regarding the nature
of the proposed amendments (Pressley, 233 AD3d at 939).
Therefore, the cross-motion to amend the complaint is denied.
DEFENDANTS' MOTION TO DISMISS
"On a CPLR § 3211 (a) (7) motion to dismiss for failure to
state a cause of action, the complaint must be construed in the
light most favorable to the plaintiff and all factual
allegations must be accepted as true" (Alden Glob. Value
Recovery Master Fund, L.P. v KeyBank N.A., 159 AD3d 618, 621-622
[1st Dept 2018] citing 219 Broadway Corp. v Alexander's, Inc.,
46 NY2d 506, 509 [1979]). Further, on such a motion, the
complaint is to be construed liberally and all reasonable
inferences must be drawn in favor of the plaintiff (see Leon v
Martinez, 84 NY2d 83, 87 [1994]).
However, "[o]n a CPLR § 3211 (a) (1) motion to dismiss based
upon documentary evidence, 'a dismissal is warranted [] if the
documentary evidence submitted conclusively establishes a
defense to the asserted claims as a matter of law'" (Alden Glob.
Value Recovery Master Fund, L.P., 159 AD3d at 621, quoting Leon,
84 NY2d at 88; Carlson v Am. Int'l Group, Inc., 30 NY3d 288, 298
[2017]). "When evidentiary material is considered, the 659778/2024 IMPARK HSW LLC ET AL vs. RFR REALTY LLC ET AL Page 8 of 20 Motion No. 001
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criterion is whether the [plaintiff] has a cause of action, not
whether [they] have stated one" (Guggenheimer v Ginzburg, 43
NY2d 268, 275 [1977]).
"To qualify as documentary [evidence], the paper's content
must be essentially undeniable and. . assuming the verity of
[the paper] and the validity of its execution, will itself
support the ground on which the motion is based" (Amsterdam
Hosp. Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 432
[1st Dept 2014] [internal citation and quotation marks omitted];
see also VXI Lux Holdco S.A.R.L. v SIC Holdings, LLC, 171 AD3d
189, 193 [1st Dept 2019] [holding that evidence qualifies as
documentary evidence within the meaning of CPLR § 3211 (a) (1)
only if it is unambiguous, undeniable, and of undisputed
authenticity]).
As such, qualifying evidence includes "documents reflecting
out-of-court transactions such as mortgages, deeds, [and]
contracts" (Magee-Boyle v Reliastar Life Ins. Co. of New York,
173 AD3d 1157, 1159 [2d Dept 2019]; see also Madison Equities,
LLC v Serbian Orthodox Cathedral of St. Sava, 144 AD3d 431 [1st
Dept 2016] [unambiguous contracts constitute documentary
evidence for the purposes of dismissal]).
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Breach of Contract against RFD Third Avenue (First Cause of Action)
To establish a cause of action for breach of contract, a
plaintiff must show the existence of a contract, plaintiff's
performance thereunder, defendant's breach thereof, and
resulting damages (see generally 34-06 73, LLC v Seneca Ins.
Co., 39 NY3d 44, 51 [2022] [discussing the standard for a breach
of contract in the context of a pleading]; see also Second
Source Funding, LLC v Yellowstone Capital, LLC, 144 AD3d 445,
446 [1st Dept 2016]). This standard requires the plaintiff to
demonstrate "'the essential terms of the parties' purported
contract, including the specific provisions of the contract upon
which liability is predicated'" (Hempel v Wise, 224 AD3d 574,
575 [1st Dept 2024], quoting Matter of Sud v Sud, 211 AD2d 423,
424 [1st Dept 1995]; see also Harman Becker Auto. Sys., Inc. v
Avnet, Inc., 237 AD3d 539, 541 [1st Dept 2025]).
Here, plaintiffs' own submissions conclusively establish
that the Agreement, as amended, terminated by its own terms on
December 31, 2011 (see NYSCEF Doc. No. 03, exhibit A to the
complaint, Agreement between garage manager and RFD Third
Avenue, dated December 08, 2003, and terminated on December 31,
2006, and Amended Agreement, dated January 01, 2007, and
terminated on December 31, 2011). Plaintiffs do not dispute
that the Agreement terminated in 2011, and indeed, expressly 659778/2024 IMPARK HSW LLC ET AL vs. RFR REALTY LLC ET AL Page 10 of 20 Motion No. 001
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acknowledge that it "expired" (see NYSCEF Doc. No. 14,
plaintiffs' affirmation in opposition, 1 12). An unambiguous, expired contract which qualifies as
documentary evidence pursuant to CPLR § 3211 (a) (1) -- insulates
defendants from liability on a breach of contract cause of
action, because "the criterion is whether the [plaintiff] has a
cause of action, not whether [plaintiff has] stated one"
(Guggenheimer, 43 NY2d at 275 [1977]). Plaintiffs do not allege
that, following the Agreement's expiration in 2011, it was
renewed, modified, or extended -- either explicitly or
implicitly {cf. Univ. Hill Realty, Ltd. v Akl, 214 AD3d 1467,
1468 [4th Dept 2023] [holding that "the contract submitted by
defendants in support of their motion failed to utterly refute
plaintiff's allegations that the contract was implicitly
extended"]). Accordingly, in the absence of a contract, no
claim for breach of contract can be maintained.
Independently, the duly recorded deed {NYSCEF Doc. No. 10)
which constitutes documentary evidence of ownership in real
property -- clearly and unambiguously establishes that RFD Third
Avenue conveyed its entire ownership interest in the premises to
East 78th Garage in 2004 {see Adamkiewicz v Lansing, 288 AD2d
531, 532 [3d Dept 2001] [holding that the deed submitted by
defendant established that it transferred ownership of the
property several months before plaintiff's accident and 659778/2024 IMPARK HSW LLC ET AL vs. RFR REALTY LLC ET AL Page 11 of 20 Motion No. 001
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therefore, the complaint "fails to state a viable cause of
action against defendant under any cognizable legal theory"];
see also Igarashi v Higashi, 289 AD2d 128 [1st Dept 2001]). The
complaint does not allege when the claimed balance accrued, nor
does it provide any basis for this Court to infer that the
claimed balance accrued prior to the transfer of ownership. 3
Further, the deed, read together with section 21 of the
Agreement -- which governed the parties' relationship until its
expiration in 2011 -- clearly and unambiguously precludes
plaintiffs from recovering against RFD Third Avenue personally,
limiting plaintiffs' recovery solely to RFD Third Avenue's
interest in the premises (see NYSCEF Doc. No. 03, exhibit A to
complaint, § 21.1 [exculpatory clause]). Thus, even if
liability were otherwise established, plaintiffs have no
recourse against RFD Third Avenue, which hasn't held an interest
in the premises since 2004 (see id.).
In opposition, plaintiffs proffer nothing to refute the
deed, nor do they challenge the enforceability of the Agreement
or exculpatory clause contained therein. 4 Instead, for the
first time in their opposition papers, plaintiff assert unpled
3 The complaint merely provides that the alleged balance was due and owing as
of December 19, 2024 {see NYSCEF Doc. No. 01, complaint). 4 Though unchallenged, it is important to note that a "nonrecourse provision is a contractual limitation on liability which, like other exculpatory clauses, is generally enforceable" {Iberdrola Energy Projects v Oaktree Capital Mgt. L.P., 231 AD3d 33, 42 at n 3 [1st Dept 2024]). 659778/2024 IMPARK HSW LLC ET AL vs. RFR REALTY LLC ET AL Page 12 of 20 Motion No. 001
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claims that (1) the conveyance of the premises to East 78th
Garage was fraudulent, and that (2) RFD Third Avenue entered
into a "de facto" merger with East 78th Garage {see NYSCEF Doc.
No. 14, plaintiffs' affirmation in opposition). The Court may
not consider these unpled claims on a motion to dismiss
{Stolzman v 210 Riverside Tenants, Inc., 229 AD3d 403, 405 [1st
Dept 2024]).
In any event, both of these theories of liability require
plaintiffs to plead the circumstances in detail in order to
"inform a defendant [of] the incidents complaint of" {see CPLR §
3016 {b) [governing causes of action for fraud]; see also
Pludeman v Northern Leasing Sys., 10 NY3d 486, 491 [2009]
[holding that the specificity requirement in causes of action
for fraud "is to inform a defendant with respect to the
incidents complained of"]; Jefferies Finance LLC v BGC Partners,
Inc., 2016 NY Slip Op 32391 [U] [Sup Ct NY Cnty 2016] [holding
that the "complaint adequately alleges acts sufficient to
support a theory of successor liability against {defendant)
under the fraud exception"] [emphasis added], citing E. Concrete
Materials Inc. v DeRosa Tennis Contractors, Inc., 139 AD3d 510,
513 [1st Dept 2016]). Plaintiffs' conclusory allegations
improperly asserted for the first time in its opposition papers
are woefully insufficient to satisfy the specificity
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requirement, and the breach of contract cause of action against
RFD Third Avenue is dismissed. 5
Account Stated against RFD Third Avenue (Second Cause of Action)
Plaintiffs' account stated cause of action must also be
dismissed. "An account stated claim is an account balanced and
rendered, with an assent to the balance express or implied; so
that the demand is essentially the same as if a promissory note
had been given for the balance" (TH Fashion Ltd. v Vince Holding
Corp., 230 AD3d 1079, 1079-1080 [1st Dept 2024], quoting Aronson
Mayefsky & Sloan, LLP v Praeger, 228 AD3d 182, 185 [1st Dept
2024] [internal quotation marks omitted]). "In order to
establish an account stated, there must be a debtor and creditor
relationship between the parties as to the items forming the
account" (Paul, Weiss, Rifkin, Wharton & Garrison v Koons, 4
Misc3d 447, 450 [Sup Ct NY Cnty 2004] [Acosta, J.], quoting 1 NY
Jur2d Accounts & Accounting§ 11 at 179-180).
An account stated cause of action assumes the existence of
an underlying indebtedness between the parties, or an express
agreement to treat a statement of debt as an account stated (see
5 Though it is suspect that RFD Third Avenue conveyed its interest to East 78th Garage in 2004 and despite no longer being the owner of the premises, entered into an Amended Agreement with garage manager in 2011, the fact remains that the complaint is devoid of any allegations sufficient to withstand the instant motion (seq. no. 01) to dismiss. 659778/2024 IMPARK HSW LLC ET AL vs. RFR REALTY LLC ET AL Page 14 of 20 Motion No. 001
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Dragonetti Bros. Landscaping Nursery & Florist, Inc. v Verizon
New York, Inc., 208 AD3d 1125, 1126 [1st Dept 2022] [holding
that an account stated claim failed because there was no alleged
"'agreement between parties to an account based upon prior
transactions between them with respect to the correctness of the
account items and balance due'"], citing Ryan Graphics, Inc. v
Bailin, 39 AD3d 249, 250 [1st Dept 2007] andinterman Indus.
Prods. v R.S.M. Electron Power, 37 NY2d 151, 156 [1975] ["no
written instrument" existed "by which the defendant .
expressly obligated itself to make the payments required by the
accounts stated"]). "It cannot be used to create liability
where none otherwise exists" (Ryan Graphics, Inc., 39 AD3d at
251 [internal citations omitted]).
Section 21 of the Agreement expressly disclaims any
personal liability on the part of RFD Third Avenue and limits
any obligations solely to RFD Third Avenue's ownership interest
in the premises (see NYSCEF Doc. No. 3, exhibit A to the
complaint). That ownership interest terminated in 2004, when
RFD Third Avenue conveyed its entire interest in the premises to
East 78th Garage by deed (see NYSCEF Doc. No. 10, exhibit B to
defendants' motion to dismiss}. As with the breach of contract
cause of action, plaintiffs have no recourse against RFD Third
Avenue under an account stated claim.
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Although a transfer of ownership is not necessarily
dispositive of an account stated claim -- particularly if
plaintiffs continued invoicing RFD Third Avenue and receiving
payments post-transfer -- plaintiffs were required to allege
post-transfer conduct by RFD Third Avenue sufficient to support
an account stated claim following RFD Third Avenue's 2004
conveyance of the premises. The complaint contains no such
allegations, and plaintiffs' opposition papers are silent as to
the same (see generally NYSCEF Doc. No. 01, complaint).
Nor does the complaint allege any continuing contractual or
creditor-debtor relationship with RFD Third Avenue after the
Agreement expired in 2011, which is independently fatal to
plaintiffs' claim (see TH Fashion Ltd., 230 AD3d at 1080).
Because an account stated cause of action "cannot be used to
create liability where none otherwise exists", the claim must be
dismissed against RFD Third Avenue (Ryan Graphics, Inc., 39 AD3d
at 251).
Unjust Enrichment against RFD Third Avenue (Third Cause of Action)
Plaintiffs' unjust enrichment cause of action likewise
fails. To state a claim for unjust enrichment, a plaintiff must
show "that (1) the other party was enriched, (2) at that party's
expense and (3) that it is against equity and good conscience to 659778/2024 IMPARK HSW LLC ET AL vs. RFR REALTY LLC ET AL Page 16 of 20 Motion No. 001
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permit [the other party] to retain what is sought to be
recovered" (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173,
182 [2011] [internal quotation marks omitted]). In order for an
unjust enrichment claim to be viable, plaintiff must identify
"what benefit was conferred on defendants" (Woods v 126
Riverside Dr. Corp., 64 AD3d 422, 424 [1st Dept 2009]).
Here, the previously discussed documentary evidence
establishes that RFD Third Avenue conveyed its interest in the
premises in 2004, and the complaint does not allege that RFD
Third Avenue retained possession of, received revenues from, or
otherwise benefitted from plaintiffs' management of the premises
thereafter (see Innovative Sec. Ltd. v OBEX Sec. LLC, 231 AD3d
646, 648 [1st Dept 2024] [holding that the cause of action for
unjust enrichment "was properly dismissed as against the
remaining defendants, because plaintiff has not alleged that
they received any benefit of" plaintiff's services]).
RFR Realty - All Causes of Action
The complaint fails to state a cognizable theory of
liability against RFR Realty, an entity that was not a party to
the Agreement (see generally NYSCEF Doc. No. 01, complaint).
Although plaintiffs' complaint and opposition papers are
underdeveloped, plaintiffs' theory of liability, to the extent 659778/2024 IMPARK HSW LLC ET AL vs. RFR REALTY LLC ET AL Page 17 of 20 Motion No. 001
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discernible from the record, appears to rest on the fact that
RFR Realty signed the Amended Agreement on RFD Third Avenue's
signature line.
"An agent who acts on behalf of a disclosed principal is
[generally] not liable for a breach of contract" (Bank of Am.,
N.A. v ASD Gem Realty LLC, 205 AD3d 1, 7 [1st Dept 2022], citing
Savoy Record Co. v Cardinal Export Corp., 15 NY2d 1, 4 [1964]).
"However, even an agent for a disclosed principal can be held
personally liable for breach of contract if there is clear and
explicit evidence of the agent's intention to substitute or
superadd his personal liability for, or to, that of his
principal" (Bank of Am., N.A., 205 AD3d at 7 [internal quotation
marks omitted]). "The best indicator of that intent is the form
of the signature" (Savoy Record Co., 15 NY2d at 6). "Thus,
where the agent signed [] an agreement 'As Agent on Behalf of' a
disclosed principal [] the agent was not liable for breach of
contract" (Bank of America, N.A., 205 AD3d at 7, citing Savoy
Record Co., 15 NY2d at 3, and Tabron Off. Furniture Corp. v King
World Prods., Inc., 161 AD2d 355, 356 [1st Dept 1990]).
Here, on the signature page of the Amended Agreement, which
again, qualifies as documentary evidence pursuant to CPLR § 3211
(a) (1), there is a signature line for "RFD THIRD AVENUE I
ASSOCIATES LLC, Owner" (NYSCEF Doc. No. 03, exhibit A to
complaint, Amended Agreement, dated January 1, 2007). The 659778/2024 IMPARK HSW LLC ET AL vs. RFR REALTY LLC ET AL Page 18 of 20 Motion No. 001
[* 18] 18 of 20 FILED: NEW YORK COUNTY CLERK 02/27/2026 04:41 PM INDEX NO. 659778/2024 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 02/27/2026
signature is that of "Mark J. Granata, Jr., President, RFR
Realty LLC, As Agent" (id. [emphasis added]). The mere act of
signing a contract as agent for a disclosed principal does not,
without more, impose personal liability on the agent (see Regal
Commodities v Tauber, 225 AD3d 907, 908 [2d Dept 2024]).
Further, there is no indication in the record that RFR
Realty ever intended to substitute or superadd its personal
liability for, or to that of, RFD Third Avenue, nor do
plaintiffs argue otherwise. Therefore, because RFR Realty
signed the Amended Agreement "As Agent" of RFD Third Avenue,
plaintiffs' breach of contract claim against RFR Realty is
unwarranted.
The same is true for the account stated and unjust
enrichment causes of action (see Bridgewater Equities v
Dominguez, 2011 WL 11075229, *4 [Sup Ct NY Cnty 2011], citing
Joan Hansen & Co., Inc. v Everlast World's Boxing Headquarters
Corp., 296 AD2d 103, 108 [1st Dept 2022]; see also Trinchese
Const., Inc. v Escarza, 2019 NY Slip Op 31038 [U], *3 [Sup Ct NY
Cnty 2019]), and those causes of action are dismissed against
RFR Realty as well.
Accordingly, it is hereby
ORDERED that the motion (seq. no. 01) to dismiss of
defendants RFR REALTY LLC and RFD THIRD AVENUE I ASSOCIATES LLC
is granted; it is further 659778/2024 IMPARK HSW LLC ET AL vs. RFR REALTY LLC ET AL Page 19 of 20 Motion No. 001
[* 19] 19 of 20 FILED: NEW YORK COUNTY CLERK 02/27/2026 04:41 PM INDEX NO. 659778/2024 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 02/27/2026
ORDERED that plaintiffs' breach of contract, account
stated, and unjust enrichment causes of action are dismissed
against defendant RFD THIRD AVENUE I ASSOCIATES LLC; it is
further
against defendant RFR REALTY LLC; it is further
ORDERED that plaintiffs' cross-motion to amend its
complaint is denied; it is further
ORDERED that, within twenty days from the date of this
decision and order, plaintiffs shall serve a copy of this order,
with notice of entry, on defendants; and it is further
ORDERED that the Clerk of Court shall mark the file
accordingly.
2/26/2026 ~~~~~ § DATE CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
659778/2024 IMPARK HSW LLC ET AL vs. RFR REALTY LLC ET AL Page 20of 20 Motion No. 001
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