SS&C Tech., Inc. v GGR Servicing Asset Mgt., LLC

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SS&C Tech., Inc. v GGR Servicing Asset Mgt., LLC 2013 NY Slip Op 32161(U) September 10, 2013 Supreme Court, New York County Docket Number: 653151/12 Judge: Anil Singh Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 09/11/2013 1] INDEX NO. 653151/2012 '!I NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 09/11/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ANIL C. SINGH 'SUPREMa COURT JUS'PD PART~ Justice '- Index Number: 653151/2012 SS&C TECHNOLOGIES, INC. INDEX NO. _ _ _ __ MOTION DATE _ _ __ vs GGR SERVICING ASSET MOTION SEQ. NO. _ __ Sequence Number: 001 DISAMISS ACTION 7 ) - The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ _ __ Notice of Motion/Order to Show Cause Answering Affidavits - Affidavits - Exhibits Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Upon the foregoing papers, it is ordered that this motion is t.},e. a..1l/lexJ mefi1o(t)./l JU' 'cReeP 1/\ J£4.~ a!'/J'-O/J_ I No(s) . _ _ _ _ __ I No(s). _ _ _ _ __ I No(s). _ _ _ _ __ a ce.o I'cIr&. Gc. WI .-t''- , :w DECIDED IN ACCORDANCE Wmt ACCOIIPANYING DECIS60N I ORDER u t=: en :J 1-' o l- e w 0:: 0:: W u.. W 0:: >:...J :...J .. en~ Z I- 0 en <t W 0:: w Z I.u en ...I ...I - W :I: l- :J u.. U g, . w (!) 0:: ~ ~ 0 < u Z o 0 u. t=: a:: .0 0 :lE u. Dated:· Hol.k~~H qjlb/rJ SUPREME COURT 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 0 0 0 ~ CASE DISPOSED GRANTED 0 SETTLE ORDER DDO NOT POST DENIED ,J.S.C. ,rlCf' NON-FINAL DISPOSITION ~ GRANTED IN PART 0 OTHER D SUBMIT ORDER o FIDUCI .\RY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 61 .-----------------------------------------------------------------)( SS&C TECHNOLOGIES, INC., DECISION AND ORDER Plaintiff, -against- Index No. 653151112 GGR SERVICING ASSET MANAGEMENT, LLC, formerly d/b/a ZAIS SERVICING ASSET MANAGEMENT, LLC, d/b/a SERVICING ASSET MANAGEMENT, LLC Defendant. -----------------------------------------------------------------)( HON. ANIL C. SINGH, J.: Defendant moves to dismiss three causes of action in the complaint pursuant to CPLR 3211(a)(l), based uponthe express terms ofa written agreement, an addendum and assignment of the agreement, and a termination letter. Plaintiff opposes the motion. Plaintiff SS&C Technologies, Inc., entered into a written agreement (the "Master Agreement") with Zais Group, LLC ("Zais"), dated March 30,2010. The agreement stated that plaintiff was to provide software and computer-related support services to Zais for a term of one year, which would be renewed automatically unless cancelled pursuant to the terms of the Master Agreement. Page 1 of 5 [* 3] Plaintiff and Zais executed a written Consent to Assignment and Addendum to Master Agreement in April 2011, that modified, extended and renewed the Master Agreement for a term of one year, beginning March 30, 2011, and ending on March 30, 2012. The document assigned the Master Lease from Zais to defendant, GGR Servicing Asset Management, LLC. Plaintiff commenced the instant action by filing a summons and verified complaint on September 10, 2012. The complaint alleges that in October 2011, defendant defaulted in making payments for the services. The complaint alleges further that defendant attempted to terminate the Master Agreement by sending a letter to plaintiff dated September 29, 2011; however, pursuant to the express terms of the Master Agreement and'addendum, the Master Agreement could not be terminated until March 29, 2012. The complaint asserts four causes of action. The first cause of action alleges breach of contract. The second alleges an account stated. The third alleges unjust enrichment. The fourth alleges that defendant failed to pay for work, labor and services delivered. Plaintiff seeks damages in the amount of $49,220. Discussion Defendant's first contention is that the account stated claim should be Page 2 of 5 [* 4] dismissed because defendant's formal termination of the Master Agreement obviated the need to continually object to plaintiffs post-termination invoices. An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due (1 N.Y.Jur.2d Accounts and Accounting section 18). An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time or makes partial payment on the account (ld.). Accordingly, a defendant's receipt and retention ofa plaintiffs invoices without objection within a reasonable period of time gives rise to an actionable account stated (Goldmuntz v. Schneider, 99 A.D.3d 544, 545 [1 SI Dept., 2012]; ). The complaint in the instant matter alleges that: 1) plaintiff rendered statements of account on a regular basis; 2) defendant retained such statements without dispute; 3) plaintiff has stated an account in the amount of $49,220; and 4) defendant refused to pay the sum despite demand. After careful consideration, we find that the facts alleged are sufficient to state a cause of action for an account stated. Defendant's contention that it was unnecessary to continually object to post-termination invoices in light of the agreement's termination is a defense that goes to the merits. Defendant's second contention is that plaintiffs unjust enrichment claim Page 3 of 5 [* 5] and quasi-contract claim for work, labor and services should be dismissed because defendant cancelled the Master Agreement and never benefitted from any services provided thereafter. "A quasi-contractual cause of action may not be duplicative of a breach of contract cause of action" (22A N.Y.Jur.2d Contracts section 571). In short, the Court finds that the causes of action for unjust enrichment and for work, labor and services are duplicative of the breach of contract claim. Defendant's final contention is that plaintiffs breach of contract claim should be dismissed because it is barred by the express terms of the Master Agreement and the addendum. Section 3.5 of the Master Agreement states in pertinent part that the Maintenance Program term shall be renewed automatically on an annual basis ... unless terminated by either party by prior written notice of at least thirty (30) days prior to the expiration of the initial term or any renewal term. '",,- (Affirmation in Opposition, exhibit A, Master Agreement, p. 3, para. 3.5). The complaint, which is verified by Richard Collyer, Vice-President of the corporate plaintiff, alleges specifically that defendant defaulted on the Master Agreement and addendum by: 1) failing to pay for services rendered; and b) sending notice of termination despite language in the agreement stating that the Page 4 of 5 [* 6] agreement renewed automatically for an additional one-year term. Viewing the allegations in the light most favorable to plaintiff, it is clear to the Court that the verified complaint states a valid cause of action for breach of contract. Accordingly, it is ORDERED that the motion to dismiss is granted, and the third and fourth causes of action are dismissed; and it is further ORDERED that defendant is directed to serve an answer to the complaint within twenty days after service of a copy of this order with notice of entry; and it is further ORDERED that counsel are directed to appear for a preliminary conference in Room 320, 80 Centre Street on October 30, 2013, at 9:30 AM. The foregoing constitutes the decision and order of the court. '. Date: Ot/1~11:l Ani l"E;...singh New York, New York r, HON. ~ C. SINGH ,':.1JPRF..Ma COUJtT JUSPJtB Page 5 of 5

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