Opinion
8379 Index 656270/16
02-14-2019
Philippa OKOYE formerly known as Philippa Jayne Burke, Plaintiff–Appellant, v. DEVERE GROUP LTD., Defendant, deVere USA, Inc. et al., Defendants–Respondents.
Katz Melinger, PLLC, New York (Kenneth J. Katz and Nicole Grunfeld of counsel), for appellant. Finestein & Malloy, L.L.C., New York Russell M. Finestein of counsel and Michael D. Malloy, of the bar of the State of New Jersey, admitted pro hac vice, of counsel), for deVere USA, Inc., respondent. Law Office of Alexander Sakin, LLC, New York (Alexander Sakin of counsel), for Benjamin Alderson, respondent.
Katz Melinger, PLLC, New York (Kenneth J. Katz and Nicole Grunfeld of counsel), for appellant.
Finestein & Malloy, L.L.C., New York Russell M. Finestein of counsel and Michael D. Malloy, of the bar of the State of New Jersey, admitted pro hac vice, of counsel), for deVere USA, Inc., respondent.
Law Office of Alexander Sakin, LLC, New York (Alexander Sakin of counsel), for Benjamin Alderson, respondent.
Renwick, J.P., Manzanet–Daniels, Oing, Moulton, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered on or about November 20, 2017, which, to the extent appealed from, granted defendants deVere USA, Inc. and Benjamin Alderson's motion to dismiss the complaint and denied plaintiff's motion for summary judgment, unanimously modified, on the law, to deny defendants' motion as to the cause of action for breach of contract, grant plaintiff's motion for summary judgment on that cause of action, and remand the matter for a determination of plaintiff's reasonable attorneys' fees, and otherwise affirmed, without costs.Defendants admit that they did not successfully tender the payment they owed plaintiff until at least 51 days after the deadline to which they had agreed in the parties' settlement agreement. This admitted failure to make timely payment under a settlement agreement fulfills the elements of a cause of action for breach of contract (see Kimso Apts., LLC v. Gandhi , 129 A.D.3d 670, 672, 15 N.Y.S.3d 341 [2d Dept. 2015], lv denied 26 N.Y.3d 916, 2016 WL 116447 [2016] ; see also Mill Rock Plaza Assoc. v. Lively , 224 A.D.2d 301, 301, 638 N.Y.S.2d 34 [1st Dept. 1996] ).
Plaintiff having prevailed on her central claim that defendants breached the settlement agreement, she is entitled to reasonable attorneys' fees under the terms of the agreement ( Sykes v. RFD Third Ave. I Assoc., LLC , 39 A.D.3d 279, 833 N.Y.S.2d 76 [1st Dept. 2007] ). That she prevailed on only one cause of action does not change the result (see Duane Reade v. 405 Lexington, L.L.C. , 19 A.D.3d 179, 180, 798 N.Y.S.2d 393 [1st Dept. 2005] ).