Flower Publ. Group LLC v Serendipity 3, Inc.

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Flower Publ. Group LLC v Serendipity 3, Inc. 2013 NY Slip Op 32420(U) October 9, 2013 Supreme Court, New York County Docket Number: 400876/12 Judge: Saliann Scarpulla 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART \ Index Number: 400876/2012 FLOWER PUBLISHING GROUP vs. SERENDIPITY 3 SEQUENCE NUMBER : 001 C( INDEX N O . - - - - MOTION DATE _ _ __ MOTION SEQ. NO. - - - DISMISS The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Upon the foregoing papers, it is ordered that this motion is I No(s)._ _ _ _ __ I No(s). - - - - I No(s). _ _ _ __ cWe.f ml/\ e.v~ l Vl ~~ ~lurzbr. w () I;; ::> ..., FI LED ~ Q w 0::: OCT 1o2013 0::: w u... w 0::: >.:.:.. ...J ~ ...J z NEW YORK COUNlY CLERK'S OFFICE ::::> 0 u. (/) .... <( () w w 0::: g, z Cl w 0::: - ~ ...J ~ w ti) ...J <( 0 i= 0::: () u. - :::c z w 0 I- 0 0 :E u.. Dated: - ~-L-(- 1'). . ,. \_;---·' 1ch\ 6 \ . 1. CHECK ONE:..................................................................... GRANTED 3. CHECK IF APPROPRIATE:................................................ SETTLE ORDER }q? NON-FINAL DISPOSITION CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: DO NOT POST 0 J.s.c. DENIED GRANTED IN PART 0 0 OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: CIVIL TERM: PART 19 -----------------------------------------------------------------------)( FLOWER PUBLISHING GROUP LLC D/B/A NYC TRAVEL GUID INTERNATIONAL, Index No.: 400876/12 Submission Date: 6/26113 Plaintiff, -against- DECISION AND ORDER SERENDIPITY 3, INC., Defendant. ------------------------------------------------------------------------)( For Plaintiff: Meyers, Saxon & Cole 3620 Quentin Road Brooklyn, NY 11234 For Defendant: Law Offices of Kenneth L. Small 317 Madison Avenue, Suite 40 5 New York, ~y 10017 FILED OCT 1 o 2013 Papers considered in review of the motion to dismiss and cross motion to amend: Notice of Motion ............... 1 Notice of Cross-Motion .......... 2 Aff in Reply ................... 3 NEW YORK COUNTY CLERK'S OFFICE HON. SALIANN SCARPULLA, J.: In this action to recover damages for breach of contract, defendant Serendipity 3, Inc. ("Serendipity") moves to dismiss the amended summons and complaint, and plaintiff Flower Publishing Group LLC d/b/a NYC Travel Guid International ("Flower") cross moves for leave to amend the summons and complaint. In or about April 2011, Flower commenced this action, alleging breach of an advertising agreement, and sought to recover $25,907.35 from Serendipity. Serendipity answered the complaint, denied all material allegations, and the parties began to conduct discovery. At a compliance conference on November 14, 2012, the parties executed a [* 3] stipulation in which they agreed, in relevant part, that Flower would serve and fiie an amended complaint by December 14, 2012, to "allege only breach of two express written agreements." On or about December 14, 2012, Flower served an amended summons and complaint (1) asserting that Serendipity breached "agreements for work, labor, services, advertising" that it executed with Flower on December 11, 2008 and July 21, 2009, seeking $25,907.35 plus attorneys fees; and (2) adding defendants Stephen Bruce ("Bruce") and Joe Calderone ("Calderone"), asserting that they personally guaranteed all obligations owed by Serendipity to Flower. Bruce was Serendipity's president and sole stockholder, officer and director, and Calderone was the head of Calderone Public Relations, a company that performed public relations services for Serendipity. Serendipity now moves to dismiss the amended summons complaint, arguing that (1) Flower may not amend the complaint at this stage in the litigation to add parties to the action without first obtaining leave of court; (2) Flower did not comply with, and exceeded the scope of, the November 14, 2012 stipulation by adding a cause of action alleging that Calderone and Bruce were personally liable to Flower pursuant to a personal guarantee and by adding a claim for attorneys fees; and (3) Calderone and Bruce never executed a personal guarantee in relation to any agreement between Serendipity and Flower. 2 [* 4] In support of the motion, Serendipity submits affidavits from Bruce and Calderone. Calderone provides that he signed the July 21, 2009 agreement on behalf of Serendipity, and Bruce provides that he signed the December 11, 2008 agreement on behalf of Serendipity. They each aver that they never executed any document that could be construed to be a personal guarantee of Serendipity's obligations to Flower, rather they only acted in a representative capacity when signing the respective agreements. Flower cross moves for leave to amend its summons. and complaint. In support of its cross motion and in opposition to Serendipity's motion, Flower's president Peter Flower ("Peter") submits an affidavit in which he explains that the July 21, 2009 agreement was executed and personally guaranteed by Calderone, and the December 11, 2008 agreement was executed and personally guaranteed by Bruce. He argues that whether Bruce and Calderone acted in a personal or representative capacity in executing those agreements presents a triable issue of fact. Discussion Pursuant to CPLR §3025, a party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave to amend a pleading is freely granted absent prejudice or surprise resulting directly from any delay in asserting the proffered claim. See Valdes v. Marbrose Realty Inc., 289 A.D.2d 28 (1 51 Dept. 2001). Whether to grant the amendment is committed to the court's discretion. See Heller v. Louis 3 [* 5] Provenzano, Inc., 303 A.D.2d 20 (Pt Dept. 2003). However, such leave should not be granted when the proposed amendment is insufficient or without merit. See Strook & Strook & Lavan v. Beltramini, 157 A.D.2d 590, 591 (1st Dept. 1990). Here, in the November 14, 2012 stipulation, the parties agreed that Flower would amend its pleadings to allege the breach of two written agreements. The parties did not agree, however, that Flower could amend its complaint to add two new defendants to the action or add a claim for attorneys fees. As such, Flower was required to have first obtained leave of court to make such amendments. Serendipity now moves to dismiss that amended complaint because of the improperly added defendants and the improperly added claim for attorneys fees, and Flower, in its cross motion, is now seeking leave to make those amendments. The court has reviewed the proposed amendments as well as the evidence submitted in support of the motion and cross motion, and finds that Flower exceeded the scope of the November 14, 2012 stipulation by amending its complaint to add claims against Bruce and Calderone and a claim for attorneys fees. The court denies Flower's cross motion for leave to amend the complaint to include claims against Bruce and Calderone. Bruce and Calderone both submitted affidavits in which they averred that they signed the subject agreements in their representative capacities, and did not sign the agreements to effectuate personal guarantees. The language of the agreements does not purport to ascribe personal guarantee obligations on Bruce or Calderone, and Flower has 4 [* 6] submitted no documentary or other evidence sufficient to justify the insertion of a claim that Bruce and Calderone executed personal guarantees when signing the agreements. However, the court will permit Flower to amend its complaint to include a claim for attorneys fees based on the clauses in the July 21, 2009 agreement and December 11, 2008 agreement relating to attorneys fees. In accordance with the foregoing, it is hereby ORDERED that defendant Serendipity 3, Inc.'s motion to dismiss the amended summons and complaint and plaintiff Flower Publishing Group LLC d/b/a NYC Travel Guid International' s cross motion for leave to amend the summons and complaint are resolved as follows: plaintiff Flower Publishing Group LLC d/b/a NYC Travel Guid International is directed serve an amended complaint within 30 days of the date of this order, asserting claims for breach of the December 11, 2008 and July 21, 2009 agreements against defendant Serendipity 3, Inc. only, and asserting a claim for attorneys fees against defendant Serendipity 3, Inc. only. This constitutes the decision and order of the court. Dated: FILED New York, New York 2013 October q, OCT 1o2013 NEW YORK ENTER: COUNlY CLERK1S OFFICE J.S.C .. 5

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