Opinion
9235 653009/13
05-07-2019
UNCLAIMED PROPERTY RECOVERY SERVICE, INC., et al., Plaintiffs–Appellants, v. CREDIT SUISSE FIRST BOSTON CORPORATION, et al., Defendants–Respondents.
Paul Batista, P.C., New York (Paul Batista of counsel), for appellants. Bracewell LLP, New York (Joshua Klein of counsel), for respondents.
Paul Batista, P.C., New York (Paul Batista of counsel), for appellants.
Bracewell LLP, New York (Joshua Klein of counsel), for respondents.
Renwick, J.P., Richter, Tom, Kapnick, Kern, JJ.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered January 26, 2018, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment, and denied plaintiffs' cross motion for summary judgment, unanimously affirmed, with costs.
The court correctly found that the parties' agreement provided only for recovery of specific unclaimed funds, and defendants' failure or refusal to execute a subsequent document to expand the terms of the original agreement did not constitute breach of contract ( Banco Espi´rito Santo, S.A. v. Concessiona´ria Do Rodoanel Oeste S.A., 100 A.D.3d 100, 106, 951 N.Y.S.2d 19 [1st Dept. 2012] ). Plaintiffs' speculation and conjecture that defendants had a secret plan to deprive them of their earned fees is unsupported by the record and insufficient to defeat defendants' motion (see Caraballo v. Kingsbridge Apt. Corp., 59 A.D.3d 270, 270, 873 N.Y.S.2d 299 [1st Dept. 2009] ).
Finally, plaintiffs' claim that defendants' motion for summary judgment was impermissibly based on an attorney's affirmation and the affirmation of someone without personal knowledge is incorrect. An attorney's affirmation may be used to submit evidence in admissible form, such as documents and transcripts, which is precisely what the attorney's affirmation did here ( Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Moreover, the affirmation from the director of the New York State Office of Unclaimed Funds (N.Y.SOUF) was properly admitted to demonstrate his knowledge of the procedures of NYSOUF.
We have considered plaintiffs' remaining arguments and find them unavailing.