Summary
identifying "email communications in which defendant acknowledged owing money" and a "$50,000 invoice" as writings supporting the contract
Summary of this case from Sequoia Healthcare Servs., LLC v. Essex Capital Corp.Opinion
2015-05-26
EASTERN EUROPEAN TRADING, CORP., Plaintiff–Respondent, v. Christian KNAUST, Defendant, LCEL Collectibles, Inc., Defendant–Appellant.
Schlacter & Associates, New York (Jed R. Schlacter of counsel), for appellant. Gutman Weiss, P.C., Brooklyn (Alan Weiss of counsel), for respondent.
Schlacter & Associates, New York (Jed R. Schlacter of counsel), for appellant. Gutman Weiss, P.C., Brooklyn (Alan Weiss of counsel), for respondent.
MAZZARELLI, J.P., ACOSTA, RENWICK, MANZANET–DANIELS, FEINMAN, JJ.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered February 27, 2014, which, to the extent appealed from, granted plaintiff's motion for summary judgment dismissing defendant's first, second, third, fourth, fifth, and seventh affirmative defenses, unanimously affirmed, with costs.
Plaintiff commenced this action asserting claims for breach of contract, account stated, and quantum meruit to recover monies that defendant owed it under an agreement “for consulting services and commissions.” Defendant denies that plaintiff ever performed any services for defendant.
The court properly dismissed defendant's affirmative defenses. Although there is no written agreement between the parties, the email communications in which defendant acknowledged owing money for “the Corte introduction” and “consulting business,” and defendant's partial payment of $10,000 without objection to the $50,000 invoice for “Introcution[sic]/Commission to Elcorte Ingles,” supports a claim alleging the existence of a binding agreement between the parties ( Kolchins v. Evolution Mkts., Inc., 128 A.D.3d 47, 8 N.Y.S.3d 1 [1st Dept.2015]; Newmark & Co. Real Estate Inc. v. 2615 E. 17 St. Realty LLC, 80 A.D.3d 476, 477, 914 N.Y.S.2d 162 [1st Dept.2011] ), as well as breach of the agreement by defendant. Such evidence also states a claim for an account stated ( see Shea & Gould v. Burr, 194 A.D.2d 369, 370, 598 N.Y.S.2d 261 [1st Dept.1993] ), and for quantum meruit ( see Farina v. Bastianich, 116 A.D.3d 546, 984 N.Y.S.2d 46 [1st Dept.2014] ).
As to the second affirmative defense, claiming fraud, waiver, estoppel, and unclean hands, the record does not show that defendant was induced to enter into the agreement due to misrepresentations by plaintiff ( see GoSmile, Inc. v. Levine, 81 A.D.3d 77, 915 N.Y.S.2d 521 [1st Dept.2010], lv. dismissed 17 N.Y.3d 782, 929 N.Y.S.2d 83, 952 N.E.2d 1077 [2011] ); that plaintiff had intentionally relinquished its right to collect on the remaining $40,000 ( Nassau Trust Co. v. Montrose Concrete Prods. Corp., 56 N.Y.2d 175, 184, 451 N.Y.S.2d 663, 436 N.E.2d 1265 [1982]; Silverman v. Silverman, 304 A.D.2d 41, 46, 756 N.Y.S.2d 14 [1st Dept.2003] ); that plaintiff had misled defendant into a change of position to its detriment ( Nassau Trust Co., 56 N.Y.2d at 184, 451 N.Y.S.2d 663, 436 N.E.2d 1265); or that plaintiff entered into the transaction with unclean hands ( National Distillers & Chem. Corp. v. Seyopp Corp., 17 N.Y.2d 12, 15–16, 267 N.Y.S.2d 193, 214 N.E.2d 361 [1966] ).
The emails showing defendant's acknowledgment that it owed money for services, along with absence of evidence showing any objection to the invoice, demonstrates consideration ( see Roffe v. Weil, 161 A.D.2d 509, 510, 555 N.Y.S.2d 779 [1st Dept.1990] ), warranting dismissal of the third affirmative defense.
That the invoice reflected plaintiff as the issuer, and that defendant had in fact issued the check for partial payment to plaintiff as the payee, undermines the fourth affirmative defense which claims that plaintiff was not a proper plaintiff in this action and lacked standing to sue ( Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 772, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991]; Security Pac. Natl. Bank v. Evans, 31 A.D.3d 278, 279, 820 N.Y.S.2d 2 [1st Dept.2006], appeal dismissed 8 N.Y.3d 837, 830 N.Y.S.2d 8, 862 N.E.2d 86 [2007] ). We also note that the emails demonstrate the involvement of plaintiff's principal in the discussions concerning business opportunities with El Corte Ingles.
The record clearly negates defendant's fifth affirmative defense of full payment.
The above mentioned evidence also satisfies the Statute of Frauds ( seeGeneral Obligations Law § 5–701[b][3][d], [b][4]; Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 54, 110 N.E.2d 551 [1953]; Newmark & Co. Real Estate Inc., 80 A.D.3d at 477, 914 N.Y.S.2d 162), thus defeating the seventh affirmative defense.