Summary
finding complaint raised issues of fact regarding defendant's possible breach of obligation of good faith and fair dealing
Summary of this case from Universal Comp., Inc. v. TidewaterOpinion
June 22, 1999.
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
The IAS Court erred in its dismissal of plaintiffs' first, second and fourth causes of action. On a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (1), a dismissal is proper only when the documentary evidence submitted establishes a defense to the asserted claims as a matter of law ( Leon v. Martinez, 84 N.Y.2d 83, 88). The opposing party needs only to assert facts which "fit within any cognizable legal theory" ( Leon v. Martinez, supra, at 87-88). Plaintiffs' allegations regarding the timing and method of terminating the Factoring Agreement and refusing to honor Letters of Credit prior to expiration of the period, without any showing by defendant that plaintiffs had breached the Factoring Agreement in any way, raise issues of fact regarding whether Bankers Trust Company breached its obligation of good faith and fair dealing to plaintiffs ( see, Advanced Safety Sys. v. Manufacturers Traders Trust Co., 188 A.D.2d 1009; Components Direct v. European Am. Bank Trust Co., 175 A.D.2d 227). As such, the first cause of action should be reinstated. Similarly, plaintiffs' second cause of action should be reinstated as there are issues of fact outstanding regarding whether the telefax of the notice of termination to Hong Kong, to an entity which plaintiffs claim was an "affiliate", was a breach of the Factoring Agreement; a provision in section 4 of the agreement sets forth the mailing address of plaintiff's chief place of business and the office at which all books and records were maintained. Further, the complaint sets forth sufficient facts to raise the issue of whether the individual plaintiff suffered consequential damages as a result of defendant's alleged improper withholding of her collateral, at least from the time that the Bank was repaid its debt in or around 1990.
Concur — Sullivan, J. P., Tom, Wallach, Lerner and Andrias, JJ.