Lansco Corp. v. Kampeas

Appellate Division of the Supreme Court of New York

Lansco Corp. v. Kampeas

87 A.D.3d 421, 927 N.Y.2d 647

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 4, 2011

StatusPublished

Cited by2 cases

This text of 87 A.D.3d 421 (Lansco Corp. v. Kampeas) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lansco Corp. v. Kampeas, 87 A.D.3d 421, 927 N.Y.2d 647 (N.Y. Ct. App. 2011).

Pincite

Opinion

[422]*422The record establishes that plaintiff misnamed the corporate signatory to the parties’ agreement, and that there was no wrongful conduct by the individual defendant. Accordingly, the IAS court should have granted defendants’ motion to dismiss to the extent of dismissing this action against the individual defendant (cf. Imero Fiorentino Assoc. v Green, 85 AD2d 419, 420-421 [1982]), and amending the caption and complaint to substitute as the correctly named corporate defendant Senkam Inc., which has consented to such substitution (see generally Le Sannom Bldg. Corp. v Lassen, 173 AD2d 249, 249-250 [1991]).

The court also should have denied so much of plaintiffs cross motion as sought summary judgment as to liability. Contrary to defendants’ contention, their attempt to orally terminate the agreement was ineffective, because the agreement required that it be terminated in writing and contained an integration and no oral modifications clause (see Chemical Bank v Wasserman, 37 NY2d 249, 251-252 [1975]). However, defendants raised an issue of fact as to whether plaintiff had deprived defendants of the benefit of their bargain and thus violated the covenant of good faith and fair dealing. In particular, defendants presented evidence that plaintiffs conduct in attempting to re-lease the space so alienated the landlord that it expressly refused to approve any tenant procured by plaintiff (see generally Ellison v Island Def Jam Music Group, 79 AD3d 458 [2010]).

Contrary to defendants’ contention, there is nothing inherently unconscionable about a nonreciprocal attorney’s fee provision in a commercial contract (see e.g. 57 Kingsland Realty Corp. v 57 Kingsland Food Corp., 30 Misc 3d 1227[A], 2011 NY Slip Op 50236[U], *2-3 [2011]). Accordingly, defendant Senkam is not entitled to dismissal of plaintiffs second cause of action for costs and attorney’s fees. Concur — Tom, J.E, Mazzarelli, Acosta, DeGrasse and Román, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

[422]*422The record establishes that plaintiff misnamed the corporate signatory to the parties’ agreement, and that there was no wrongful conduct by the individual defendant. Accordingly, the IAS court should have granted defendants’ motion to dismiss to the extent of dismissing this action against the individual defendant (cf. Imero Fiorentino Assoc. v Green, 85 AD2d 419, 420-421 [1982]), and amending the caption and complaint to substitute as the correctly named corporate defendant Senkam Inc., which has consented to such substitution (see generally Le Sannom Bldg. Corp. v Lassen, 173 AD2d 249, 249-250 [1991]).

The court also should have denied so much of plaintiffs cross motion as sought summary judgment as to liability. Contrary to defendants’ contention, their attempt to orally terminate the agreement was ineffective, because the agreement required that it be terminated in writing and contained an integration and no oral modifications clause (see Chemical Bank v Wasserman, 37 NY2d 249, 251-252 [1975]). However, defendants raised an issue of fact as to whether plaintiff had deprived defendants of the benefit of their bargain and thus violated the covenant of good faith and fair dealing. In particular, defendants presented evidence that plaintiffs conduct in attempting to re-lease the space so alienated the landlord that it expressly refused to approve any tenant procured by plaintiff (see generally Ellison v Island Def Jam Music Group, 79 AD3d 458 [2010]).

Contrary to defendants’ contention, there is nothing inherently unconscionable about a nonreciprocal attorney’s fee provision in a commercial contract (see e.g. 57 Kingsland Realty Corp. v 57 Kingsland Food Corp., 30 Misc 3d 1227[A], 2011 NY Slip Op 50236[U], *2-3 [2011]). Accordingly, defendant Senkam is not entitled to dismissal of plaintiffs second cause of action for costs and attorney’s fees. Concur — Tom, J.E, Mazzarelli, Acosta, DeGrasse and Román, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

87 A.D.3d 421, 927 N.Y.2d 647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lansco-corp-v-kampeas-nyappdiv-2011.

Opinion

Related

Cite This Page — Counsel Stack