Opinion
115576/08, 14824, 14823
11-10-2015
ABYSSINIAN DEVELOPMENT CORPORATION, et al., Plaintiffs–Respondents–Appellants, v. David BISTRICER, et al., Defendants–Appellants–Respondents.
Stahl & Zelmanovitz, New York (Joseph Zelmanovitz of counsel), for appellants-respondents. Windels Marx Lane & Mittendorf LLP, New York (Mel P. Barkan of counsel), for respondents-appellants.
Stahl & Zelmanovitz, New York (Joseph Zelmanovitz of counsel), for appellants-respondents.
Windels Marx Lane & Mittendorf LLP, New York (Mel P. Barkan of counsel), for respondents-appellants.
Opinion Judgment, Supreme Court, New York County (Richard F. Braun, J.), entered October 10, 2013, after a nonjury trial, awarding plaintiffs sums of money as against defendant Clipper Equity Holdings, LLC, dismissing plaintiffs' claims against defendant Bistricer, and dismissing the counterclaim, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered September 9, 2013, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.The trial court's factual findings are based on a fair interpretation of the evidence, and its legal conclusions are correct. Neither delivery of the letter of intent nor the closing of the contract to purchase Starrett City was a condition precedent to the enforceability of the parties' obligations under § 18 of the letter of intent (see Schuler–Haas Elec. Co. v. Aetna Cas. & Sur. Co., 40 N.Y.2d 883, 389 N.Y.S.2d 348, 357 N.E.2d 1003 [1976] ). Execution of the letter of intent by plaintiff organization was not unreasonably delayed, especially in light of the fact that defendants were still making efforts to obtain execution until just days before the letter was signed.
Amendment of the answer to assert the defense of illegal lobbying activity was properly denied for lack of merit.
Plaintiffs substantially performed under the letter of intent by “cooperating with” defendants and “actively supporting” their efforts to obtain community and governmental approval of the planned purchase.
Plaintiff law firm is entitled to recover its fees based on an account stated in light of the fact that defendants retained its itemized bill without objection for 4 ½ months from the date it was first rendered in August 2007 (see Ellenbogen & Goldstein v. Brandes, 226 A.D.2d 237, 641 N.Y.S.2d 28 [1st Dept.1996], lv. denied 89 N.Y.2d 806, 654 N.Y.S.2d 716, 677 N.E.2d 288 [1997] ). No equitable considerations warrant a departure from this conclusion.
The claim for legal fees was correctly dismissed as against defendant Bistricer, who is not personally liable for the fees. His alleged oral promise to pay them is barred by the statute of frauds (General Obligations Law § 5–701 [a][2] ). It was not rendered enforceable by any new consideration flowing to him (see DePetris & Bachrach, LLP v. Srour, 71 A.D.3d 460, 463, 898 N.Y.S.2d 4 [1st Dept.2010] ). Nor is there an exception under General Obligations Law § 5–701 for part performance (see Gural v. Drasner, 114 A.D.3d 25, 977 N.Y.S.2d 218 [1st Dept.2013], lv. dismissed 24 N.Y.3d 935, 993 N.Y.S.2d 546, 17 N.E.3d 1144 [2014] ). In any event, the law firm's continued work was not unequivocally referable to Bistricer's alleged oral promise to be personally liable for the fees.
The trial court correctly dismissed the counterclaim for fraud based on its finding that the claimed representation was not made and on defendants' failure to prove by clear and convincing evidence that plaintiffs never intended to comply with their contractual obligations (see Callisto Pharm., Inc. v. Picker, 74 A.D.3d 545, 903 N.Y.S.2d 370 [1st Dept.2010] ).
Plaintiffs' request for attorneys' fees was correctly denied since it was not even asserted in a wherefore or an ad damnum clause (see Vertical Computer Sys., Inc. v. Ross Sys., Inc., 59 A.D.3d 205, 206, 873 N.Y.S.2d 551 [1st Dept.2009] ; Fairchild Camera & Instrument Corp. v. Barletta, 31 A.D.2d 534, 295 N.Y.S.2d 75 [1st Dept.1968] ).
We have considered the parties' other arguments for affirmative relief and find them unavailing.
The Decision and Order of this Court entered herein on April 16, 2015 is hereby recalled and vacated (see M–2665, 2015 WL 6874881 decided simultaneously herewith).
MAZZARELLI, J.P., RENWICK, RICHTER, KAPNICK, JJ., concur.