Advance Fresh Concepts Franchise Corp. v. Nayyarsons Deli Bakery Corp. et al

Filing 125

ORDER denying 82 Motion to Dismiss for Failure to State a Claim; denying 83 Motion to Dismiss for Failure to State a Claim. For the reasons stated herein, Defendants' motions to dismiss are denied. Defendants are free, however, to renew their arguments on motions for summary judgment upon the close of discovery. (Ordered by Judge Leonard D. Wexler on 9/19/2016.) (Fagan, Linda)

FILED
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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ADVANCED FRESH CONCEPTS
FRANCHISE CORP.,

Plaintiff,

SEP192016

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LONG ISLAND OFFICE

ORDER
CV 15-2330 (LDW) (GRB)

-againstNAYYARSONS DELI BAKERY CORP.;
NA YYARSONS NYC CORP.;
NA YYARSONS CORP.; MARIANAYYAR,
As Administrator of the Estate of
ANIL NAYYAR; and SALIL NAYYAR,
Defendants.

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WE)(LER, District Judge:

Plaintiff, Advanced Fresh Concepts Franchise Corp. ("Plaintiff'), brings this diversity
action against the Defendants, Nayyarsons Deli Bakery Corp., Nayyarsons NYC Corp.,
Nayyarsons Corp. (collectively, the "Corporate Defendants"), Maria Nayyar, as Administrator of
the Estate of Ani! Nayyar ("Maria"), and Salil Nayyar ("Salil"), alleging claims for a declaratory
judgment, breach of contract, conversion, unjust enrichment, money had and received and for an
accounting. The action arises out of a business relationship in which Plaintiff contracted with
Defendants to place its sushi counters in certain commissaries, cafes and grocery stores run by
Defendants. Pursuant to the terms of the parties' contract, Defendants collected the proceeds
from the sale of Plaintiffs sushi products, holding seventy-five percent in trust for Plaintiff, for
subsequent disbursement, and retaining twenty-five percent. Plaintiff alleges that Defendants
breached the contract by failing to deliver to Plaintiff almost $1 million that Defendants collected
from the sale of Plaintiffs sushi products.
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Before the Court are motions to dismiss by each of the individual Defendants, Maria and
Salil, pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes the motions. To
date, there has been no appearance in this action by any of the Corporate Entities.
In determining the sufficiency of the Complaint, the Court assumes that all of the
allegations contained therein are true and draws all reasonable inferences in Plaintiffs favor,

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Kassner v. 2nd Ave. Delicatessen. Inc., 496 F.3d 229, 237 (2d Cir. 2007), mindful, however, that
plaintiff is required to plead enough facts "to state a claim for relief that is plausible on its face."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At!. Com. v. Twombly, 550 U.S. 544,
570 (2007)). The main argument asserted in both of the individual defendants' motions is that
Plaintiff has failed to adequately allege that the Corporate Entities were alter egos of the
individual defendants, such that the corporate veil should be pierced, allowing for individual
liability. While the Court agrees that the Complaint is not the most artfully drafted document,
upon consideration, the Court finds that Plaintiff's Complaint is sufficient, at this juncture, to
plausibly allege an alter ego theory of liability. Plaintiffs claims for a declaratory judgment,
breach of contract, conversion, unjust enrichment, money had and received and for an accounting
are, therefore, adequately stated. Accordingly, Defendants' motions to dismiss are denied.
Defendants are free, however, to renew their arguments on motions for summary judgment upon
the close of discovery.

SO ORDERED:
Dated: Central Islip, New York
September 19, 2015
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LEONARD D. WEXLER
United States District Judge

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