Opinion
2012-10-25
STUDIO A SHOWROOM, LLC, Plaintiff–Appellant, v. David YOON, et al., Defendants–Respondents.
Halperin & Halperin, P.C., New York (Jeffrey Weiskopf of counsel), for appellant. Law Office of John F. Olsen, LLC, Rye Brook (John F. Olsen of counsel), for respondents.
Halperin & Halperin, P.C., New York (Jeffrey Weiskopf of counsel), for appellant. Law Office of John F. Olsen, LLC, Rye Brook (John F. Olsen of counsel), for respondents.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered May 18, 2011, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the fourth cause of action in plaintiff's complaint as against defendant Yoony Corp. Holdings d/b/a The Addison Story (Addison), unanimously affirmed, with costs.
Although Addison failed to include the pleadings with its motion, the error was properly overlooked, as the pleadings were filed electronically and thus were available to the parties and the court ( see Welch v. Hauck, 18 A.D.3d 1096, 1098, 795 N.Y.S.2d 789 [3d Dept. 2005],lv. denied 5 N.Y.3d 708, 803 N.Y.S.2d 29, 836 N.E.2d 1152 [2005] ).
Regardless of whether the parties agreed to delete the portion of their agreement containing the termination and integration clauses—a point the parties dispute—the end result was that the agreement did not contain a clause stating that it could be modified only in writing. Further, the record evidence demonstrates that the parties did, in fact, agree to terminate their agreement on 30 days' notice ( see Belknap v. Witter & Co., 92 A.D.2d 515, 517, 460 N.Y.S.2d 1005 [1st Dept. 1983],affd. 61 N.Y.2d 802, 473 N.Y.S.2d 948, 462 N.E.2d 125 [1984];cf. Lansco Corp. v. Kampeas, 87 A.D.3d 421, 422, 927 N.Y.S.2d 647 [1st Dept. 2011] ). The evidence does not support plaintiff's contention that it agreed to terminate the agency relationship, but not the agreement.