Opinion
7601–7602 Index 650497/16
11-13-2018
WEBMD LLC, Plaintiff–Respondent, v. AID IN RECOVERY, LLC, Defendant–Appellant.
Greenberg Traurig, LLP, New York (Robert J. Kirshenberg of counsel), for appellant. Browne George Ross, LLP, New York (Jeffrey A. Mitchell of counsel), for respondent.
Greenberg Traurig, LLP, New York (Robert J. Kirshenberg of counsel), for appellant.
Browne George Ross, LLP, New York (Jeffrey A. Mitchell of counsel), for respondent.
Renwick, J.P., Tom, Mazzarelli, Webber, Kern, JJ.
The court correctly granted plaintiff summary judgment on its breach of contract cause of action. Defendant's claim that there is a question of fact as to the parties' intent to be bound is unavailing, given the written agreement signed by the parties (see e.g. Curtis Props. Corp. v. Greif Cos. , 212 A.D.2d 259, 266, 628 N.Y.S.2d 628 [1st Dept. 1995] ); Defendant's reliance on Martin H. Bauman Assoc. v. H & M Intl. Transp. , 171 A.D.2d 479, 567 N.Y.S.2d 404 (1st Dept. 1991) is misplaced, as the issue in that case was "whether the parties entered into a valid oral contract" ( id. at 483, 567 N.Y.S.2d 404 [emphasis added] ). The question of Shane SantaCroce's authority to sign the contract on defendant's behalf is a separate issue from intent to be bound.
Plaintiff concedes that SantaCroce did not have actual authority to sign the contract on defendant's behalf. However, even if SantaCroce did not have apparent authority, defendant ratified the agreement by its acceptance of benefits flowing therefrom (see IRB–Brasil Resseguros, S.A. v. Inepar Invs., S.A. , 83 A.D.3d 573, 575, 922 N.Y.S.2d 308 [1st Dept. 2011], affd 20 N.Y.3d 310, 958 N.Y.S.2d 689, 982 N.E.2d 609 [2012], cert denied 569 U.S. 994, 133 S.Ct. 2396, 185 L.Ed.2d 1105 [2013] ). It is undisputed that plaintiff displayed defendant's advertisements on plaintiff's website and that people clicked on the advertisements.
The court also correctly granted plaintiff summary judgment on its account stated cause of action. Defendant claims that it disputed plaintiff's invoices, but submitted no evidence in support of the claim (see Scheichet & Davis, P.C. v. Nohavicka , 93 A.D.3d 478, 939 N.Y.S.2d 848 [1st Dept. 2012] ). Defendant not only retained the invoices without objection for more than five months (see Spectra Audio Research v. 60–86 Madison Ave. Dist. Mgt. Assn. , 267 A.D.2d 23, 699 N.Y.S.2d 360 [1st Dept. 1999], lv dismissed 95 N.Y.2d 791, 711 N.Y.S.2d 157, 733 N.E.2d 229 [2000] ), but also paid some of them (see Shaw v. Silver , 95 A.D.3d 416, 943 N.Y.S.2d 89 [1st Dept. 2012] ; Scheichet , 93 A.D.3d at 478, 939 N.Y.S.2d 848 ; Morrison Cohen Singer & Weinstein v. Ackerman , 280 A.D.2d 355, 356, 720 N.Y.S.2d 486 [1st Dept. 2001] ). While the invoices do not reflect a credit that plaintiff gave defendant, plaintiff's summary judgment motion does reflect the credit (see Shaw , 95 A.D.3d at 416, 943 N.Y.S.2d 89 ["The account stated was not impeached by an error that was rectified at trial"] ).
Plaintiff moved not only for summary judgment on its complaint but also to dismiss the mitigation defense. Defendant failed to oppose that part of plaintiff's motion; hence, we decline to review the arguments defendant makes about mitigation on appeal (see Callisto Pharm., Inc. v. Picker , 74 A.D.3d 545, 903 N.Y.S.2d 370 [1st Dept. 2010] ; Lally v. New York City Health & Hosps. Corp. , 277 A.D.2d 9, 716 N.Y.S.2d 295 [1st Dept. 2000], appeal dismissed 96 N.Y.2d 896, 730 N.Y.S.2d 792, 756 N.E.2d 80 [2001] ).