Opinion
No. 4990.
August 4, 2011.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 8, 2010, which, in this breach of contract action, granted so much of plaintiffs cross motion as sought summary judgment as to liability and denied defendants' motion to dismiss the complaint, unanimously modified, on the law, to grant defendants' motion to the extent of dismissing the complaint against Jacky Kampeas and amending the caption and complaint to substitute as defendant Senkam Inc. in place of Samcek Inc., and to deny so much of plaintiffs cross motion as sought summary judgment as to liability, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint as against Jacky Kampeas.
Lawrence A. Omansky, New York, for appellants.
Lionel A. Barasch, New York, for respondent.
Before: Concur — Tom, J.P., Mazzarelli, Acosta, DeGrasse and Román, JJ.
The 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), 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).
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). 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 release 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).
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.