Opinion
2013-04-30
DERFNER MANAGEMENT INC., Plaintiff–Respondent, v. LENHILL REALTY CORP., et al., Defendants–Appellants.
Stroock & Stroock & Lavan LLP, New York (Charles G. Moerdler of counsel), for appellants. Kaye Scholer LLP, New York (James D. Herschlein and Daniel P. Hope of counsel), for respondent.
Stroock & Stroock & Lavan LLP, New York (Charles G. Moerdler of counsel), for appellants. Kaye Scholer LLP, New York (James D. Herschlein and Daniel P. Hope of counsel), for respondent.
ACOSTA, J.P., MOSKOWITZ, RENWICK, FREEDMAN, CLARK, JJ.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered March 26, 2012, which, to the extent appealed from, granted plaintiff's motion for a preliminary injunction to the extent defendants had withdrawn their notices of termination for defendants Blair Hall, Inc. and Edwin Realty Corp., and the board of directors of Lenhill Realty Corp. had withdrawn the previously issued notice of termination, granted plaintiff's motion for a judgment declaring that the December 21, 2010 special meeting of the board of directors of Lenhill Realty Corp. was properly noticed and the election of the five directors at that meeting was lawful, and so declared, and denied defendants' motion to dismiss the complaint, unanimously reversed, on the law, with costs, plaintiff's motions denied, the injunction and declaration vacated, and defendants' motion granted. The Clerk is directed to enter judgment in defendants' favor dismissing the complaint.
Plaintiff alleges that defendants breached the oral agreement pursuant to which it served as the exclusive manager of the real property owned by defendants Lenhill Realty Corp., Blair Hall, Inc., and Edwin Realty Corp. by terminating the agreement without giving it reasonable notice.We find, however, that the rule that a contract lacking a clearly expressed duration will be held to have been intended to continue for a reasonable time does not apply to the subject exclusive agency agreement ( see Haines v. City of New York, 41 N.Y.2d 769, 772–773, 396 N.Y.S.2d 155, 364 N.E.2d 820 [1977];see e.g. Banana Kelly Community Improvement Assn. v. Schur Mgt. Co., Ltd., 34 Misc.3d 1207[A], *8–9, 2012 WL 75207 [Sup. Ct., Bronx County 2012] [enjoining defendant from continuing to act as plaintiff's property manager due to irreparable deterioration of parties' eight-year relationship] ). Thus, defendants were not required to give plaintiff reasonable notice of the termination.
The preliminary injunction granted to plaintiff must be vacated in light of the foregoing. In any event, plaintiff failed to demonstrate its entitlement thereto. In particular, there is no showing of irreparable harm for which monetary damages could not adequately compensate ( see New York City Off–Track Betting Corp. v. New York Racing Assn., 250 A.D.2d 437, 442, 673 N.Y.S.2d 387 [1st Dept. 1998] ). Indeed, the complaint seeks damages in an amount equal to fees alleged to have been wrongfully withheld by defendants.
Plaintiff's request for a declaratory judgment should not have been granted because plaintiff failed to assert a claim for declaratory relief in a pleading ( see McHugh v. Weissman, 46 A.D.3d 369, 847 N.Y.S.2d 566 [1st Dept. 2007] ).