Opinion
2011-08-4
The LANSCO CORPORATION, Plaintiff–Respondent,v.Jacky KAMPEAS, et al., Defendants–Appellants.
Lawrence A. Omansky, New York, for appellants.Lionel A. Barasch, New York, for respondent.
Lawrence A. Omansky, New York, for appellants.Lionel A. Barasch, New York, for respondent.TOM, J.P., MAZZARELLI, ACOSTA, DeGRASSE, ROMÁN, JJ.
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 plaintiff's 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 plaintiff's 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.
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 A.D.2d 419, 420–421, 447 N.Y.S.2d 942 [1982] ), 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 A.D.2d 249, 249–250, 569 N.Y.S.2d 451 [1991] ).
The court also should have denied so much of plaintiff's 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 N.Y.2d 249, 251–252, 371 N.Y.S.2d 919, 333 N.E.2d 187 [1975] ). 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 plaintiff's conduct in attempting to re-lease 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 A.D.3d 458, 911 N.Y.S.2d 619 [2010] ).
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 N.Y. Slip Op. 50236[U], *2–3, 2011 WL 679442 [2011] ). Accordingly, defendant Senkam is not entitled to dismissal of plaintiff's second cause of action for costs and attorney's fees.