Opinion
No. 2010/16025.
2011-08-4
PALMER FISH COMPANY, INC. and G & C Food Distributors & Brokers, Inc., Plaintiff, v. APA AGENCY, INC., Defendants.
Plaintiff's Exhibit B. With the exception of listing the position to be filled as “Sales Manager,” the G & C contract states identical payment terms. Id. at Exhibit C. CPLR 1002(a) imposes a “two-part requirement: (1) a single event (or related series of events) must have involved all the parties to be joined; and (2) at least one question of law or fact links the claims among all the parties.” CPLR 1002, Practice Commentaries by V. Alexander. This provision “assure(s) fairness by preventing the joinder of parties who have no connection to a dispute solely between others.” Id.
KENNETH R. FISHER, J.
Plaintiff, Palmer Fish Company, Inc. and G & C Food Distributors & Brokers, Inc., move pursuant to CPLR 3212 for an order striking defendant's answer and granting plaintiffs summary judgment on the grounds that defendant has no valid defense and no triable issue of fact exists. Defendant, APA Agency, Inc., cross moves for an order severing the plaintiffs' claims pursuant to CPLR 603.
Plaintiffs submit the affidavit of John M. Whittier, CFO of both plaintiffs. This action arises out of plaintiffs' allegation that defendant has failed to refund certain monies paid by plaintiffs to defendant in connection with two employee placement contracts, one between plaintiff Palmer and defendant and the other between plaintiff G & C and defendant.
In March 2010, plaintiffs engaged defendant to identify suitable candidates to apply and/or interview for managerial job openings. Each plaintiff had one opening to fill. Palmer and defendant entered into their contract on June 3, 2010, with effective dates running from March 3, 2010 through March 3, 2011. Palmer was seeking to fill a Retail Store Manager position. G & C and defendant entered into an almost identical contract on March 25, 2010, with effective dates running from March 25, 2010 through March 25, 2011. G & C sought to fill a Sales Manager position. In relevant part, the Palmer contract states:
Fee agreement regarding the placement of employees.
From the effective date of this agreement, Palmer Food Services agrees to pay APA Agency, Inc. for the acceptable placement at the following determined rate:
Retail Store Manager—Flat 25% of base salary
Special Offer: *22.5% of base salary with the following special payment terms: Down payment of $6,000 paid upon signing of agreement. $6,000 payable upon commencement of interviews. Final balance due upon candidate start date.
Our fee is earned when an offer is extended and a candidate accepts.
Plaintiff's Exhibit B. With the exception of listing the position to be filled as “Sales Manager,” the G & C contract states identical payment terms. Id. at Exhibit C.
Plaintiffs each paid defendant $12,000 in accordance with the contracts' requirements. Neither plaintiff extended offers to the candidates recommended by defendant and both contracts with defendant have expired. Plaintiffs allege that defendant's fee was never earned pursuant to the contract, and defendant must refund the amounts paid. Plaintiffs allege that most of the candidates recommended by defendant were interviewed by plaintiffs' respective hiring committees. Additionally, for each position, each plaintiff identified one candidate recommended by defendant to participate in an “Executive Prehire Assessment,” a program designed to evaluate a candidate's leadership and problem solving abilities and to determine whether their skills and expertise will allow them to meet the job requirements. Neither candidate was ultimately hired.
In November 2010, plaintiffs requested the return of the advances paid. Defendant refused, allegedly claiming that the amounts paid were non-refundable.
Plaintiff's complaint alleges services had and received and an account stated. The answer states several affirmative defenses: failure to state a claim, statute of frauds, statute of limitations; estoppel, laches and/or waiver; plaintiffs improperly joined; defendant was not the legal cause of any damage; and plaintiffs failed to mitigate. Defendant also states a counterclaim alleging that the “Executive Prehire Assessments” were not based upon bona fide occupational qualifications or skill sets and that plaintiffs breached the contracts by telling defendant it was forbidden and barred from submitting further candidates, thus interfering with defendant's ability to perform and causing damages. Answer, ¶¶ 18–28. The second counterclaim alleges that defendant provided services to plaintiffs and have not received adequate compensation. Id. at ¶¶ 30–33.
Joinder/Severance
Defendant's cross motion contends that this action deals with two separate plaintiffs, alleging separate breaches of two separate contracts.
CPLR 1002(a) states:
Plaintiffs. Persons who assert any right to relief jointly, severally, or in the alternative arising out of the same transaction, occurrence, or series of transactions or occurrences, may join in one action as plaintiffs if any common question of law or fact would arise.
CPLR 1002(a) imposes a “two-part requirement: (1) a single event (or related series of events) must have involved all the parties to be joined; and (2) at least one question of law or fact links the claims among all the parties.” CPLR 1002, Practice Commentaries by V. Alexander. This provision “assure(s) fairness by preventing the joinder of parties who have no connection to a dispute solely between others.” Id.
Plaintiffs properly joined their claims in the same action. Akely v. Kinnicutt, 238 N.Y. 466, 467 (1924); Hempstend General Hospital v. Liberty Mutual Ins. Co., 134 A.D.2d 569 (2d Dept.1987); and esp., Rosenfeld v. Oleck, 261 App. Div. 296, 299 (2d Dept.1941); Eagle Bay Park Ass'n v. Longstaff, 256 App. Div. 1036 (4th Dept.1949). John Whittier, CFO of both plaintiffs, avers that each plaintiff entered into a nearly identical contract with defendant, whereby defendant was to identify suitable candidates to apply and/or interview for job openings with plaintiff. The crux of this action rests upon the interpretation of these two contracts, which are identical in all relevant respects. Thus, plaintiff are similarly situated in that each shares a common CFO and both plaintiff entities entered into the substantially same contract with defendant during the same time frame. Moreover, as the contracts are nearly identical, the same question of law arises with respect to the interpretation of the those contracts.A leading text even states that: “If there is a rational connection between the parties and causes of action, CPLR 1002 is satisfied.” 3 Weinstein–Korn–Miller, New York Civil Practice ¶ 1002.05, p. 10–40 (2d ed.2010). Compare Mount Sinai Hosp. v. Motor Veh. Acc. Indem. Corp., 291 A.D.2d 536 (2d Dept.2002)(Special Term properly granted a motion to sever five assigned no-fault claims that, inter alia, arose from “accidents on five different dates” and had “no relation or similarity to each other, other than the fact that the no-fault benefits were not paid”).
CPLR 603, the section relied upon by defendant for severance states:
In furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue. The court may order the trial of any claim or issue prior to the trial of the others.
Defendant also points out that plaintiffs never moved for consolidation of its' claims pursuant to CPLR 602.
Consolidation was not necessary in this action because, as discussed supra, plaintiffs properly joined their claims pursuant to CPLR 1002(a). Moreover, the circumstances presented do not warrant severance of the claims before the court. Blecher v. Rockville Park Homes, 279 App. Div. 613 (2d Dept.1951); Chiba v. Kurutz, 263 App. Div. 33 (1st Dept.1941); Rosenfeld v. Oleck, 261 App. Div. 296, 299 (2d Dept.1941); Eagle Bay Park Ass'n v. Longstaff, 256 App. Div. 1036 (4th Dept.1949).
Defendant's motion for severance is denied.
Summary Judgment
It is well settled that “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986) (citations omitted). See also, Potter v. Zimber, 309 A.D.2d 1276 (4th Dept.2003) (citations omitted). “Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution.” Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 (2003), citing Alvarez, 68 N.Y.2d at 324. “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the responsive papers.” Wingrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985) (citation omitted). See also, Hull v. City of North Tonawanda, 6 AD3d 1142, 1142–43 (4th Dept.2004). When deciding a summary judgment motion, the evidence must be viewed in the light most favorable to the nonmoving party. See Russo v. YMCA of Greater Buffalo, 12 AD3d 1089 (4th Dept.2004). The court's duty is to determine whether an issue of fact exists, not to resolve it. See Barr v. County of Albany, 50 N.Y.2d 247 (1980); Daliendo v. Johnson, 147 A.D.2d 312, 317 (2nd Dept.1989) (citations omitted).
Plaintiffs' motion for summary judgment relies upon its interpretation of the contracts plaintiffs entered into with defendant. The principles of contract interpretation are well settled. “The best evidence of what parties to a written agreement intend is what they say in their writing.' “ Greenfield v. Philles Records, 98 N.Y.2d 562, 569 (2002), quoting Slamow v. Del Col, 79 N.Y.2d 1016, 1018 (1992). “Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.” Id.
A familiar and eminently sensible proposition of law is that, when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing ( see, e.g., Mercury Bay Boating Club v. San Diego Yacht Club, 76 N.Y.2d 256, 269–270, 557 N.Y.S.2d 851, 557 N.E.2d 87;Judnick Realty Corp. v. 32 W. 32nd St. Corp., 61 N.Y.2d 819, 822, 473 N.Y.S.2d 954, 462 N.E.2d 131;Long Is. R.R. Co. v. Northville Indus. Corp., 41 N.Y.2d 455, 393 N.Y.S.2d 925, 362 N.E.2d 558;Oxford Commercial Corp. v. Landau, 12 N.Y.2d 362, 365, 239 N.Y.S.2d 865, 190 N.E.2d 230). That rule imparts “stability to commercial transactions by safeguarding against fraudulent claims, perjury, death of witnesses * * * infirmity of memory * * * [and] the fear that the jury will improperly evaluate the extrinsic evidence.” (Fisch, New York Evidence § 42, at 22 [2d ed].) Such considerations are all the more compelling ... where commercial certainty is a paramount concern. W.W.W. Associates, Inc. v. Giancontieri, 77 N.Y.2d 157, 162 (1990). See also Lee v. Tetra Tech, Inc., 14 Misc.3d 1235(A), *5 (Sup.Ct. Monroe Cty.2007). “Whether a contract is ambiguous is a question of law and extrinsic evidence may not be considered unless the document itself is ambiguous.” South Rose Associates, LLC v. International Business Machines Corp., 4 NY3d 272, 277–78 (2005). See also, Lee, 14 Misc.3d at *6 (stating that the extrinsic evidence “is not admissible so long as the court finds that the contractual provisions in question are unambiguous”).
There is no ambiguity in either of the contracts plaintiffs entered into with defendant. Each agreement states that it is a “Fee agreement regarding the placement of employees.” Plaintiffs' Motion Papers, Exhibits B & C. Neither agreement sets forth that defendant's relationship is exclusive with each plaintiff, nor do the contracts prohibit or limit plaintiffs' abilities to conduct independent searches for candidates to fill the open positions.
Moreover, as quoted supra, the contracts state:
From the effective date of this agreement, Palmer Food Services agrees to pay APA Agency, Inc. for the acceptable placement at the following determined rate:
Retail Store MangerFlat 25% of base salary
Special Offer:
*22.5% of base salary with the following special payment terms: Down payment of $6,000 paid upon signing of agreement. $6,000 payable upon commencement of interviews. Final balance due upon candidate start date.
Our fee is earned when an offer is extended and a candidate accepts.
Plaintiff's Motion Papers, Exhibit B. See also, id. at Exhibit C (minor difference in contract, relating to type of position to be filled). There is no ambiguity in the contracts: the contracts, drafted by defendants, state that payment is specifically being made “for the acceptable placement” of a candidate. Id. The contracts then state the terms of payment, providing for two payments of $6,000, with the “[f]inal balance due upon candidate start date.” Id. The contracts explicitly state: “Our fee is earned when an offer is extended and a candidate accepts.” The contracts unambiguously provide for the rate charged to provide plaintiffs with “acceptable placement[s]”: defendant's contracts state that they charge a “25% of base salary” flat fee. Id. That fee, however, if not earned until “an offer is extended and a candidate accepts.” Id. The contracts do not provide for any fees due to defendant for merely locating potential candidates or for searching for candidates. Rather, the clear language of the contracts provides that plaintiffs were responsible for payment upon the “acceptable placement” of a candidate. Until a candidate was found by defendant, deemed acceptable, and offered and accepted the job, defendant's fees was not “earned. Id. To the extent ambiguity could be found in the term “down payment,” used by defendant in drafting the contracts with reference to the payment terms. See Emery v. Fishmarket Inn of Granite Springs, Inc., 173 A.D.2d 765, 766 (2d Dept.1991).
Plaintiffs establish prima facie entitlement to summary judgment based upon the unambiguous contracts.
Defendant opposes the motion and also raises several affirmative defenses and a counterclaim in the its answer, noted supra. Defendant has not moved for summary judgment on its counterclaim.
Defendant's opposition does not prove, or even attempt to set forth, merit to the majority of the affirmative defenses raised. The court's discussion, supra, compels the conclusion that the affirmative defenses of improper joinder and defendant did not cause damage to plaintiff are without merit.
Defendant's opposition contends that plaintiffs acted in bad faith and breached their contracts with defendant by interfering with and preventing defendant from performing its contractual obligations. First, with respect to the Palmer position, defendant alleges that the defendant's candidate was subjected to a behavioral assessment that was inappropriate. These allegations do not raise a question of fact as to plaintiffs' entitlement to summary judgment under the language of the contracts. Neither contract makes any representations about the whether a behavioral assessment can be completed or restrict plaintiffs' abilities to use their own methods and tools to assess candidates. Defendant provides only hearsay evidence of what an alleged candidate told Joan Gracie, president of defendant, alleged discriminatory questions asked. “[H]earsay evidence may be considered in opposition to a motion for summary judgment, provided that it is not the only proof relied upon by the opposing party.” X–Med, Inc. v. Western New York Spine, Inc., 74 AD3d 1708, 1710 (4th Dept.2010), quoting Raux v. City of Utica, 59 AD3d 984, 985 (4th Dept.2009). No other evidence of alleged discriminatory practices is before the court.
Defendant further contends that plaintiffs barred defendant from submitting and presenting candidates for further interviews and hiring consideration. As noted supra, defendant was not given any exclusivity in finding candidates for plaintiffs, and plaintiffs were not restricted by the contracts from finding internal candidates for the positions. Likewise, plaintiffs were not bound to hire a candidate presented by defendant. Even assuming defendant is correct that plaintiffs barred the submission of additional candidates, a question of fact to prevent plaintiffs' motion is not raised because defendant has not demonstrated how this alleged interference would have compromised any rights it has under the contracts.
Plaintiffs' motion for summary judgment is granted.
SO ORDERED.