Opinion
12312N Index No. 650781/17 Case No. 2019-05000
11-10-2020
Alex MASHINSKY, Plaintiff–Appellant, v. Reid DRESCHER, Defendant, Spencer Clarke, LLC, Defendant–Respondent.
Yankwitt LLP, White Plains (Cassandra M. Vogel of counsel), for appellant. The Roth Law Firm PLLC, New York (Richard A. Roth of counsel), for respondent.
Yankwitt LLP, White Plains (Cassandra M. Vogel of counsel), for appellant.
The Roth Law Firm PLLC, New York (Richard A. Roth of counsel), for respondent.
Manzanet–Daniels, J.P., Kapnick, Mazzarelli, Moulton, JJ.
Order, Supreme Court, New York County (Gerald Lebovits, J.), entered September 30, 2019, which granted defendant Spencer Clarke, LLC's motion for summary judgment dismissing the breach of contract claim against it, denied plaintiff's motion to amend the complaint, and dismissed the complaint in its entirety as against Spencer Clarke, LLC, unanimously affirmed, with costs.
Where defendant Spencer Clarke, LLC "was not a signatory to the ... agreement[s], no cause of action for breach of contract can be asserted against it" ( Hampton Hall Pty Ltd. v. Global Funding Servs., Ltd., 82 A.D.3d 523, 524, 918 N.Y.S.2d 455 [1st Dept. 2011], lv denied 17 N.Y.3d 707, 2011 WL 3925211 [2011] ). Each agreement plainly states it is between plaintiff and defendant Reid Drescher and contains a signature block for Drescher "INDIVIDUALLY,". Moreover, the first operative clause of the agreements makes clear they are assignments of seller's – defined as defendant Reid Drescher – "rights, title and interest in and to" commissions upon closings of transactions with the identified companies. Plaintiff points to nothing in the agreements that require a different interpretation (see Isaacs v. Westchester Wood Works, 278 A.D.2d 184, 185, 718 N.Y.S.2d 338 [1st Dept. 2000] ). Furthermore, the court properly dismissed the complaint in its entirety against Spencer Clarke, LLC because the complaint does not state a claim for fraud in the inducement against it.
Leave to amend pleadings should be freely granted in the absence of prejudice or surprise so long as the proposed amendment is not palpably insufficient as a matter of law (see McGhee v. Odell, 96 A.D.3d 449, 450, 946 N.Y.S.2d 134 [1st Dept. 2012] ). Here, the proposed amended complaint is palpably insufficient as it alleges in conclusory fashion that Drescher acted on behalf of Spencer Clarke, LLC as its agent or alter ego (see First Sterling Corp. v. Union Sq. Retail Trust, 102 A.D.3d 490, 958 N.Y.S.2d 346 [1st Dept. 2013] ).