Opinion
05-23-2017
SUSTAINABLE PTE LTD., et al., Plaintiffs–Respondents–Appellants, v. PEAK VENTURE PARTNERS LLC, et al., Defendants, Nader Tavakoli, et al., Defendants–Appellants–Respondents.
Kasowitz Benson Torres LLP, New York (Emilie B. Cooper of counsel), for appellants-respondents. Sher Tremonte LLP, New York (Erica A. Wolff of counsel), for respondents-appellants.
Kasowitz Benson Torres LLP, New York (Emilie B. Cooper of counsel), for appellants-respondents.
Sher Tremonte LLP, New York (Erica A. Wolff of counsel), for respondents-appellants.
ACOSTA, P.J., RENWICK, MAZZARELLI, ANDRIAS, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered on or about December 11, 2015, which to the extent appealed and cross-appealed from as limited by the briefs, denied dismissal of the claim for tortious interference with contractual relations as asserted against defendants Nader Tavakoli and Vladislav Doronin, granted dismissal of the claim for tortious interference with prospective contractual relations, and granted dismissal of the part of plaintiffs' unjust enrichment claim that is based on certain fees and expenses set forth in a SURF Agreement, unanimously modified, on the law, to deny dismissal of the unjust enrichment claim, and otherwise affirmed, with costs against defendants-appellants. Plaintiffs have stated a claim for tortious interference with contractual relations against Doronin and Tavakoli by alleging the existence of the SURF Agreement between them and defendants Omar Amanat and Peak Venture Partners LLC; Doronin's and Tavakoli's knowledge of the SURF Agreement; that Doronin and Tavakolo, through a series of complex business machinations, intentionally procured Amanat and Peak's breach of the SURF Agreement by depriving them of the ability to perform under the agreement; actual breach of the SURF Agreement; and plaintiffs' damages (Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 424, 646 N.Y.S.2d 76, 668 N.E.2d 1370 [1996] ). Plaintiffs have further alleged that the breach of contract would not have occurred but for the activities of Doronin and Tavakoli (Cantor Fitzgerald Assoc. v. Tradition N. Am., 299 A.D.2d 204, 749 N.Y.S.2d 249 [1st Dept.2002], lv. denied 99 N.Y.2d 508, 757 N.Y.S.2d 819, 787 N.E.2d 1165 [2003] ).
The asset management provision of the SURF Agreement sets forth sufficient material terms to be enforceable in its own right, and is not merely an agreement to agree. Specifically, the provision identifies the services to be provided by plaintiff Sustainable PTE Ltd., the specific compensation that Sustainable is to receive in exchange for those services, and the duration of the agreement (cf. Signature Brokerage v. Group Health, 5 A.D.3d 196, 197, 772 N.Y.S.2d 812 [1st Dept.2004] [agreement was unenforceable due to lack of material terms] ). The provision is not rendered unenforceable simply because certain nonmaterial terms were left for future negotiation, or because the SURF Agreement provides that the parties would execute a future asset management services agreement (see Trolman v. Trolman, Glaser & Lichtman, P.C., 114 A.D.3d 617, 618, 981 N.Y.S.2d 86 [1st Dept.2014], lv. denied 23 N.Y.3d 905, 2014 WL 2580146 [2014] ). Doronin and Tavakoli's arguments remaining concerning the claim for tortious interference with contractual relations either raise issues of fact inappropriate for resolution on a motion to dismiss, or are unavailing.
The motion court correctly dismissed the claim for tortious interference with prospective contractual relations, due to insufficient allegations of wrongful conduct motivated solely by a desire to harm plaintiffs (Carvel Corp. v. Noonan, 3 N.Y.3d 182, 190, 785 N.Y.S.2d 359, 818 N.E.2d 1100 [2004] ; see Arnon Ltd [IOM] v. Beierwaltes, 125 A.D.3d 453, 3 N.Y.S.3d 31 [1st Dept.2015] ).
Plaintiffs are permitted to assert their unjust enrichment claim in the alternative (Beach v. Touradji Capital Mgt. L.P., 85 A.D.3d 674, 675, 927 N.Y.S.2d 41 [1st Dept.2011] ), particularly since Doronin and Tavakoli are not parties to the SURF Agreement, yet are alleged to have received the value of plaintiffs' services.
We have considered the parties' remaining contentions and find them unavailing.