Lazard Freres & Co. v. First National Bank

Appellate Division of the Supreme Court of New York

Lazard Freres & Co. v. First National Bank

238 A.D.2d 273, 656 N.Y.S.2d 874, 1997 N.Y. App. Div. LEXIS 4298

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

DecidedApril 24, 1997

StatusPublished

This text of 238 A.D.2d 273 (Lazard Freres & Co. v. First National Bank) 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

Lazard Freres & Co. v. First National Bank, 238 A.D.2d 273, 656 N.Y.S.2d 874, 1997 N.Y. App. Div. LEXIS 4298 (N.Y. Ct. App. 1997).

Pincite

Opinion

—Order, Supreme Court, New York County (Charles Ramos, J.), entered September 20, 1996, which denied the parties’ respective motions for summary judgment, unanimously modified, on the law, to grant summary judgment in favor of defendant only to the extent of dismissing the fourth cause of action for tortious interference with business relations, and otherwise affirmed, without costs.

The documents relied on by plaintiffs were sufficient to [274]*274withstand defendant’s motion for summary judgment based on the Statute of Frauds set forth in General Obligations Law § 5-701 (a) (1) (see, Crabtree v Elizabeth Arden Sales Corp., 305 NY 48, 55-56). However, issues of fact exist as to the material terms of the alleged residual fee agreement, including the percentage and the amount of the residual fee, what services were performed therefor and when it was due and payable (see, Khazzam v Tremont Advisers, 214 AD2d 515). There is no merit to defendant’s argument that the contract and quantum meruit claims for the residual fee are governed by the Statute of Frauds set forth in General Obligations Law § 5-701 (a) (10), since, unlike the services performed for the "up-front” fee, which defendant has already paid to plaintiffs, those contemplated for the residual fee were clearly not "limited and transitory” in nature (see, Freedman v Chemical Constr. Corp., 43 NY2d 260, 266-267), and the two fees are susceptible to apportionment and division (compare, Whitman Heffernan Rhein & Co. v Griffin Co., 163 AD2d 86, lv denied 76 NY2d 715). We modify to dismiss the cause of action for tortious interference with business relations, there being no basis upon the facts alleged for characterizing defendant’s refusal to acknowledge its alleged liability for the residual fee, so as to facilitate plaintiff parent’s sale of plaintiff subsidiary, as "wrongful” (see, NBT Bancorp v Fleet/ Norstar Fin. Group, 87 NY2d 614, 622, 624; cf., Forken v Cigna Corp., 234 AD2d 992). Concur—Milonas, J. P., Ellerin, Tom and Mazzarelli, JJ.

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—Order, Supreme Court, New York County (Charles Ramos, J.), entered September 20, 1996, which denied the parties’ respective motions for summary judgment, unanimously modified, on the law, to grant summary judgment in favor of defendant only to the extent of dismissing the fourth cause of action for tortious interference with business relations, and otherwise affirmed, without costs.

The documents relied on by plaintiffs were sufficient to [274]*274withstand defendant’s motion for summary judgment based on the Statute of Frauds set forth in General Obligations Law § 5-701 (a) (1) (see, Crabtree v Elizabeth Arden Sales Corp., 305 NY 48, 55-56). However, issues of fact exist as to the material terms of the alleged residual fee agreement, including the percentage and the amount of the residual fee, what services were performed therefor and when it was due and payable (see, Khazzam v Tremont Advisers, 214 AD2d 515). There is no merit to defendant’s argument that the contract and quantum meruit claims for the residual fee are governed by the Statute of Frauds set forth in General Obligations Law § 5-701 (a) (10), since, unlike the services performed for the "up-front” fee, which defendant has already paid to plaintiffs, those contemplated for the residual fee were clearly not "limited and transitory” in nature (see, Freedman v Chemical Constr. Corp., 43 NY2d 260, 266-267), and the two fees are susceptible to apportionment and division (compare, Whitman Heffernan Rhein & Co. v Griffin Co., 163 AD2d 86, lv denied 76 NY2d 715). We modify to dismiss the cause of action for tortious interference with business relations, there being no basis upon the facts alleged for characterizing defendant’s refusal to acknowledge its alleged liability for the residual fee, so as to facilitate plaintiff parent’s sale of plaintiff subsidiary, as "wrongful” (see, NBT Bancorp v Fleet/ Norstar Fin. Group, 87 NY2d 614, 622, 624; cf., Forken v Cigna Corp., 234 AD2d 992). Concur—Milonas, J. P., Ellerin, Tom and Mazzarelli, JJ.

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Bluebook (online)

238 A.D.2d 273, 656 N.Y.S.2d 874, 1997 N.Y. App. Div. LEXIS 4298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lazard-freres-co-v-first-national-bank-nyappdiv-1997.

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