Opinion
7385 7386 Index 654349/13
10-18-2018
EVEREST REINSURANCE COMPANY, Plaintiff–Appellant, v. GALILEO WEATHER RISK MANAGEMENT ADVISORS, LLC, et al., Defendants–Respondents. Everest Reinsurance Company, Plaintiff–Respondent, v. Galileo Weather Risk Management Advisors, LLC, et al., Defendants–Appellants.
Saiber LLC, New York (Joseph J. Schiavone of counsel), for appellant/respondent. Stevens & Lee, New York (Bradley L. Mitchell of counsel), for respondents/appellants.
Saiber LLC, New York (Joseph J. Schiavone of counsel), for appellant/respondent.
Stevens & Lee, New York (Bradley L. Mitchell of counsel), for respondents/appellants.
Richter, J.P., Manzanet–Daniels, Kapnick, Kern, Moulton, JJ.
Order, Supreme Court, New York County (Melissa Crane, J.), entered December 5, 2017, which denied plaintiff's motion for summary judgment on the issue of liability on its breach of contract claim as against defendant Galileo Weather Risk Management Advisors, LLC (Galileo), unanimously affirmed, with costs. Order, same court and Justice, entered December 4, 2017, which denied defendants' motion for summary judgment dismissing the breach of contract and unjust enrichment claims as against Galileo, unanimously modified, on the law, the motion granted to the extent of dismissing the unjust enrichment claim, and otherwise affirmed, without costs.
In 2011, plaintiff and Galileo entered into an arrangement whereby Galileo would locate potential weather-related insurance and/or derivative transactions for plaintiff, which would pay Galileo a fee on such transactions that closed. For purposes of these appeals, the parties agree that in 2012, plaintiff and Galileo reached an agreement memorialized solely in two emails and pursuant to which plaintiff would provide Galileo with $300,000 to hire a particular individual and, in exchange, Galileo's fees on future transactions that it located in Europe would be reduced by $330,000. After Galileo subsequently sold its assets and discontinued doing business, plaintiff commenced this action to recoup the $330,000 called for under the agreement.
Plaintiff argues that Galileo repudiated the agreement by selling its assets and ceasing to do business, which disabled its ability to pay back the agreed amount from future commissions (see Computer Possibilities Unlimited v. Mobil Oil Corp., 301 A.D.2d 70, 77, 747 N.Y.S.2d 468 [1st Dept. 2002], lv denied 100 N.Y.2d 504, 762 N.Y.S.2d 874, 793 N.E.2d 411 [2003] ). Galileo does not dispute that, to the extent it had an obligation at the time of the asset sale to continue locating deals for plaintiff, it repudiated the agreement. However, it contends that it had no such obligation. Because the agreement here is silent on any duration of time that Galileo was required to locate potential deals for plaintiff, an issue of fact exists as to whether Galileo repudiated the agreement by selling its assets and rendering itself unable to continue to do so (see Michael Leibman & Assoc., Inc. v. Ultimate Combustion Co., Inc., 145 A.D.3d 467, 468, 44 N.Y.S.3d 12 [1st Dept. 2016] ; see also Savasta v. 470 Newport Assoc., 82 N.Y.2d 763, 765, 603 N.Y.S.2d 821, 623 N.E.2d 1171 [1993] ["When a contract does not specify time of performance, the law implies a reasonable time"] ).
However, Supreme Court erred in denying defendants' motion insofar as they sought dismissal of the unjust enrichment claim. To the extent that the dispute is not within the scope of the agreement, the agreement does not preclude an unjust enrichment claim ( Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987] ). However, no such claim lies here. In the absence of a contractual provision entitling plaintiff to recoup a certain sum, it suffered no loss from providing Galileo with $300,000 to generate business for plaintiff, which resulted in plaintiff earning more than $1 million on a single transaction. Thus, "equity need not intercede" ( Meghan Beard, Inc. v. Fadina, 82 A.D.3d 591, 593, 919 N.Y.S.2d 156 [1st Dept. 2011] ; see Edelman v. Starwood Capital Group, LLC, 70 A.D.3d 246, 250, 892 N.Y.S.2d 37 [1st Dept. 2009], lv denied 14 N.Y.3d 706, 2010 WL 1235618 [2010] ).