Fiorillo v Kerr

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Fiorillo v Kerr 2011 NY Slip Op 32337(U) August 29, 2011 Supreme Court, New York County Docket Number: 602601-2009 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. .. SCANNED ON 81301201 1 [* 1] I Index Number 60260112009 INDEX NO. FIORILLO, JOHN MOTION DATE VS MOTION SEQ. NO. KNERR, ANTHONY 00 MOTION CAL. NO. SEQUENCE NUMBER 002 - SUMMARY JUDGMENT I this motion tolfor PAPERS NIJMBE No Yes Cross-Motion: AUG 30 2011 Upon the foregoing papers, It is ordare that this motion NEW YORK COUNTY CLERK'S OFFICE Dated: Check one: ?h FINAL DISPOSITION Check if appropriate: c NON-FINAL DISPOSITION ] DO NOT POST 0 SUBMIT ORDER/ JUDG. REFERENCE SETTLE ORDER/ JUDG. [* 2] SUPREME COURTOF THE STATEOF NEW YORK COUNTY OF NEW YORK: IAS PARY 10 X ______l"r-------________________________----------------------- John Fiorillo, DECISION/ ORDER Plaintiff (s), -againstAnthony Kerr d/b/a Anthony Kerr & Associates and Anthony Kerr & Associates, LLC, Defendant (s). Index No.: Seq. No.: 602601-2009 002 PRESENT: Hon. Judith J. Gische J. S. C . FILED AUG 30 2011 Recitation, as required by CPLR 5 2219 [a] of the papers considered in t h w m & this (these) motion(s): COUNTY CLERKS OFFICE Papers Nurnbered Defs' n/m (3212) w/AAM affirm, AK affid, exhs (sep backs) , . . . . 1,2,3 Proof of service . . . . , . , , . . . . . . . . . . . . . . . . , , , . , . . . . . . . . . . . , . 4 Upon the foregoing papers, the decision and order of the court is as follows: GISCHE J.: This action was originally brought by plaintiff for fraudulent inducement (Istcause of action), unjust enrichment (2"dcause of action) and breach of contract (3'd cause of action). Following defendants' motion for the pre-answer dismissal of the complaint, the court dismissed the lstand 2nd causes of action for the reasons stated in its prior order dated March 19, 2010. Issue has been joined on the remaining cause of action for breach of contract and the plaintiff filed the note of issue indicating all discovery was either completed or waived. Presently before the cowt is a timely motion for summary judgment dismissing the sole remaining cause of action. Though there is proof of service of the motion, -Page 1 of 4- [* 3] plaintiff has not opposed it. Therefore it is decided on default. Although on default, defendant must still make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Wineqrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 , 853 [I 985]). Having set forth the facts of this case in its prior order, they will not be repeated here since the reader is presumed to be familiar with them. Briefly, plaintiff claims that the defendants induced him to use his formidable contacts in the health care industry to help them obtain a certain project. The inducement consisted of false promises he would be working on the project once obtained. Although plaintiff acknowledges the agreement was informal and unwritten, he claims the parties agreed he would be paid his usual fee as a consultant which he claims is $300 per hour. Based on his expectation that h e would be working 2 % days a week on the project, he estimates he is owed $68,000 in unpaid fees. In denying defendants motion for the preanswer dismissal of the breach of contract action, the court found that plaintiff had set forth specific enough terms to support a breach of contract action or a quasi contract claim at the pleading stage (see prior order). Now, however, defendants have put forth evidence in admissible form that there was, in fact, no agreement between them as to whether plaintiff would be paid for his involvement in the project, how many hours he would work or how he would be paid (Le. hourly or otherwise). At his deposition, plaintiff was asked about alleged agreement he claims he had with the defendants. Plaintiff testified that he had discussed his fees defendants Anthony Knerr and that Mr. Knerr did not seem to think his hourly rate was a problem. -Page 2 of 4- [* 4] Plaintiff also testified that based upon that conversation, he came away with a general understanding that he would be paid. Plaintiff acknowledged, however, that his fee was not based upon anything concrete, such as how much project would cost and h e had no idea the project was eventually terminated. Plaintiffs claim for unpaid fees of $68,000 is based upon what he claims his usual hourly rate is and an estimate of how many hours he expected to work and be paid for. Plaintiff admitted at his EBT that the parties never set how many hours he could work nor did they ever discuss how the hours would be calculated. He acknowledged that there were other consultants would be involved in the project as well but did not know what arrangements they had. formation of a The elements of a cause of action for breach of contract are: (I) contract between the parties; (2) performance by plaintiff; (3) defendants failure to Dept 19861). petform; and (4) resulting damage (Furia v. Furia, 116 A.D.2d 694 [2nd Furthermore, to create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms /Express Industries and Terminal Corp. v. New York State Dept. of 9991). Transportation, 93 N.Y.2d 584 [I A contract must be reasonably definite in its material terms to be enforceable and a mere agreement to agree is not enforceable (see e.g. Martin Delicatessen v. Schumacher, 52 N.Y.2d 105, 109 [1980] ). Defendants have proved that even if, as plaintiff claims, there were general discussions about whether he would be paid for his services as a consultant, and even if they had indicated that $300 an hour was not a problem, these terms are too vague and indefinite to support a breach of contract claim. The parties, at best, reserved the right to revisit or address these issues at a -Page 3 of 4- [* 5] later time but they never reached an agreement with respect to all the material terms. Plaintiffs view of what was agreed is without any support in the record. Furthermore, having failed to oppose this motion, plaintiff has failed to raise any triable issues of act justifying the denial of defendants motion. Since the terms of plaintiffs contract is indefinite, defendants motion for summary judgment dismissing the remaining breach of contract action is granted and the 3rdcause of action is dismissed. Conclusion In accordance with the foregoing, IT IS HEREBY ORDERED defendants motion for summary judgment is granted on default that and the 3rdcause of action is dismissed; and it is further ORDERED the complaint and this action are dismissed in their entirety; and it that is further ORDERED the Clerk shall enter judgment in favor of defendants Anthony Kerr that d/b/a Anthony Kerr & Associates and Anthony Kerr & Associates, LLC against plaintiff John Fiorillo dismissing this action together with the costs and disbursements of this action, as taxed by the Clerk of the Court; and it is further ORDERED any relief that has not been expressly addressed is hereby denied; that and it is further FILED ORDERED this constitutes the decision and order of the court. that Dated: AUG 30 2011 9 New Yor August New York 201 1 -Page 4 of 4-

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