Kennedy Assoc. v JPMorgan Chase Bank N.A.

Kennedy Assoc. v JPMorgan Chase Bank N.A. 2015 NY Slip Op 08783 Decided on December 1, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 1, 2015
Mazzarelli, J.P., Renwick, Moskowitz, Richter, JJ.
16251 650019/12

[*1] Kennedy Associates, Plaintiff-Respondent,

v

JPMorgan Chase Bank N.A., Defendant-Appellant.

Small & Calvo, New York (Eugene L. Small of counsel), for appellant.

Cane & Associates LLP, New York (Peter S. Cane of counsel), for respondent.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered June 19, 2014, which denied defendant's motion for summary judgment dismissing the breach of contract cause of action (the only remaining cause of action in the complaint), unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.

The contract between the parties clearly required a written assignment document containing certain information provided by defendant, in order for plaintiff to be paid for its recruiting services. The contract also noted that defendant reserved the right to hire candidates based on unsolicited résumés without paying plaintiff a fee. Where, as here, the parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]).

Plaintiff failed to present evidence of a written document from defendant authorizing it to seek candidates for a position in defendant's Hong Kong office. We reject plaintiff's contention that defendant waived the writing requirement because, on other occasions, it had paid plaintiff placement fees despite the lack of a formal, written assignment document. The contract contained a provision repudiating unwritten waivers of its requirements. In addition, where, as here, a contract is clear on its face, there is no need to resort to the parties' course of conduct in order to determine their intent (see Ninth St. Assoc. v 20 E. Ninth Corp., 114 AD3d 518, 519 [1st Dept 2014]). Moreover, plaintiff failed to present sufficient evidence showing that, after the effective date of the contract, defendant paid plaintiff for placements that occurred without a written assignment document.

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 1, 2015

CLERK