Cels Enterprises, Inc. v. Brancorp Factors, Inc.

159 A.D.2d 392

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 1990
• Status: Published

Opinion

Order, Supreme Court, New York County (Walter Schackman, J.), entered August 11, 1988, which granted defendant Brancorp Factors, Inc.’s motion for summary judgment dismissing the complaint, unanimously modified, on the law, by reinstating the seventh through eleventh causes of action of the complaint, and otherwise affirmed, without costs.

In this action, plaintiff, Cels Enterprises, Inc., an importer and wholesale distributor of merchandise manufactured abroad, seeks to recover monetary damages for breach of contract, conversion and unjust enrichment arising out of a factoring agreement. We agree with the Supreme Court that the first through sixth causes of action are barred by a termination agreement between the parties wherein plaintiff agreed to pay certain fees and charges and to release defendant Brancorp Factors, Inc. from any and all liability under the factoring agreement. Therefore, these causes of action were properly dismissed.

Nevertheless, the seventh through eleventh causes of action, all premised upon events occurring more than 10 months after the execution of the termination agreement and the general release therein, should not have been dismissed, since the acts complained of were not within the contemplation of the parties nor encompassed in the parties’ general release. Concur—Murphy, P. J., Ross, Rosenberger, Asch and Ellerin, JJ.