Active World Solutions, Inc. v Means

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Active World Solutions, Inc. v Means 2021 NY Slip Op 31729(U) May 17, 2021 Supreme Court, Kings County Docket Number: 520301/16 Judge: Lawrence S. Knipel Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 05/21/2021 04:09 PM NYSCEF DOC. NO. 96 INDEX NO. 520301/2016 RECEIVED NYSCEF: 05/21/2021 At a Ter1n, Part NJTRP of the Supreme Court of the State of New York, held in ai1d for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the l 7 1h day of May, 2021. PRESENT: HON. LAWRENCEKNIPEL, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X ACTIVE WORLD SOLUTIONS, INC. and ALVARO VAZQUEZ, Plaintiffs, - against - Index No. 520301/16 MALIK MEANS and ACTIVE WORLD SCHOLASTIC, LLC, Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X The following e-filed papers read 11erein: NYSCEF Doc Nos. 1 Notice of Motion/Order to Sl1ow Cause/ Petition/Cross Motio11 and Affidavits (Affirmatio11s) Annexed._ _ __ 28-37, 39-52, 67-68, 71-76 Opposing Affidavits (Affirmations) _ _ __ 53-66, 68-70, 81-84 Reply Affidavits (Affirmations)·_ _ _ __ 85-88, 90-91, 89 Upon the foregoing papers in this action for breach of a co1nmercial contract, plaintiffs Active World Solutions, Inc. (Solutions) and Alvarado Vazquez (Vazquez) (collectively, plaintiffs) move, in motion sequence (mot. seq.) two, pursuant to CPLR 3212, for an order granting them partial sum1nary judgment on the first and second causes of action in their complaint against defendants, Malik Means (Means) and Active World Scholastic, LLC (Scholastic) (co!lectively, defendants). Each of those causes 1 New York State Cotrrts Electronic Filing Document Numbers 1 of 17 [*FILED: 2] KINGS COUNTY CLERK 05/21/2021 04:09 PM NYSCEF DOC. NO. 96 INDEX NO. 520301/2016 RECEIVED NYSCEF: 05/21/2021 of action claim breach of contract, with the first one seeking $30,572.00 in unpaid monthly payments to Means and the second one seeking $12, 704 for unpaid goods sold and delivered to Scholastic. Defendants cross-move, in inot. seq. three, seelcing an order granting leave to move for partial su1n1nary judgment on "good cause" sho\vn and then granting partial summary judgment, pursuant to CPLR 3212, dismissing plaintiffs' second and third causes of action in tl1eir entirety as a matter of law. Plaintit1s cross-move, in mot. seq. four, for an order pursuant to CPLR 3025 (b) for leave to file and serve an amended complaint on defendants to change Solutions' ad dan1nu1n clause i11 its third cause of action fro1n one for speci.fic perfonnance of an exclusive supply contract to one for monetary drunages for breach of the same contract because the ter1n for the exclusive supply contract has expired. Background a11d Procedural History In this com1nercial dispute, plaintiffs seek damages allegedly sustained as a result of the breach of a company buyout agreement and nonpayment for goods. In 2015, the parties f6rn1ed Scl1olastic as a joint venture. Plaintiff Vazquez and his wife Maria owned 50% of Scholastic and defendant Means owned the other half. In 2016, the parties dissolved their relationship and entered into a buyout agree1nent, signed on August 15, 2016, wherein Means bought plaintiff Vazquez and his wife's joint 50% interest in Scholastic for $30,000 (see NYSCEF Doc No. 11). Means made that payment upon signing the agree1nent. However, the agreement also required Means to reimburse Vazquez $30,572.00, for the startup costs he and his wife had incurred forming 2 of 17 [*FILED: 3] KINGS COUNTY CLERK 05/21/2021 04:09 PM NYSCEF DOC. NO. 96 INDEX NO. 520301/2016 RECEIVED NYSCEF: 05/21/2021 Scholastic. Such payments were to be made in $2,000.00 monthly installments beginning October 1, 2016 with the last payment of$2,572.00 due in January 2018. The agreement also includes an exclusive arrangement requiring Scholastic to purchase all its custo1ndecorated apparel from Solutions for three years after the agree1nent's signing. Plaintiffs claim that defendants have not paid the monthly installments; did not purchase all its custom-decorated apparel from Solutions during the three-year period provided by the agree1nent; and have not paid for a custo1n order (i.e. the Barringer order) that was delivered to defenda11ts. On or about Nove1nber 10_, 2016, plaintitfs commenced this action by sum1nons and complaint, discovery ensued, and plaintiffs filed a note of issue and a certificate of readiness for trial on January 27, 2020. Thereafter, the instant motions were filed. P/11intiffs' Motion Plaintiffs contend that Vazquez is entitled to sum1nary judgment on the first cause of actio11 because Means admitted in his deposition that none of the pay1nents required under paragraph three of the agreement were made. They also assert that summary judgment is warranted where, as here, a defendant admits to acts constituting the ele1nents of a cause of -action. Defendant Means in this regard testified that his attorney, Jill Pilgritn, advised l1i1n not to make the payments to Vazquez and advised him, instead, to make the payments to her to hold in her escrow a.ccount (see NYSCEF Doc No. 32, Means tr at 209, line 3 through 211, line 25, annexed as exhibit 2 to plaintiffs' moving papers). Neither Meru1s, nor his attorney, it is argued, provide a valid factual or legal justification for rnal<ing pay1nents to an attorney escrow account. TheretOre, plaintiffs 3 3 of 17 [*FILED: 4] KINGS COUNTY CLERK 05/21/2021 04:09 PM NYSCEF DOC. NO. 96 INDEX NO. 520301/2016 RECEIVED NYSCEF: 05/21/2021 contend that they are entitled to sum1nary judg1nent on their first cause of action for breach of contract based on defendant Means' admission that the installment payments totaling $30,572.00 are outstanding. Additionally, plaintiffs argue they are entitled to recover the contract balance from defendants for the specially made or unique ite1ns that remain unpaid. Relying on the New York Unifonn Co1n1nercial Code, plaintiffs state it is undisputed that Solutions produced clothing itetns pursuant to a purchase order approved by Means, on behalf of Scholastic; that the clothing items were a custom order for a specific and unique purpose; that the items had no resale value to another customer; and that Scholastic never paid for those ite1ns. Solutions asserts that it has de1nonstrated by documentary evidence its entitlement to judgment on its second cause of action for breach of contract for goods sold and delivered, and that there is no 1naterial factual issue to be determined at trial. Solutions thus clai1ns entitlement to su1n1nary judgment on its second cause of action for breach of contract in the amount of $12,704.00 for goods sold and delivered. Defe111/ants' Cross Motion In moving for leave to file a partial su1nmary judgment motion, defendants recognize that the filing time provided by CPLR 3212 (a) is shortened by Rule 13 of the Ki11gs County Uniform Civil Terril Rules, which provides that rr[n]o motion for summary judgment may be made more than 60 days after filing a Note of Issue ... except with leave of the Cou1i on good cause shown. 11 Defendants sub111it that good cause for the delay exists because the Covid-19 pandemic halted nonesse11tial proceedings on March 4 4 of 17 [*FILED: 5] KINGS COUNTY CLERK 05/21/2021 04:09 PM NYSCEF DOC. NO. 96 INDEX NO. 520301/2016 RECEIVED NYSCEF: 05/21/2021 19, 2020, around the time the motion was originally due, i.e. March 27, 2020. 2 The March deadline \Vas not met because the COVID-19 pandemic closed the court and counsel is oftlce for 1nonths. Fu1iher, defe11dants reference Governor Andre\v Cuomo's prior Executive Order No. 202.28 and its progeny, wl1ich tolled "any specific ti1ne limit for the co1mnencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to ... the civil practice law and rttles ... or by any other ... rule, or regulation ... 11 Defendants calculate the tolling provisions as having run for I 08 days from March 20, 2020 through July 6, 2020. Their counsel adds that he still lacks full access to his downtown Manhattan office and only recently gained full access to the file 1naterials for this 1natter. Defense counsel acknowledges that tl1is cross motion is beyond the 60-day ti111e frame in Rule 13, but notes in applying the tolling provision of the Governor1s prior orders that the time to 1nove for su1nmary judg1nent re1nains well within the CPLR's 120day post-note of issue ti1ne limit. Hence, defendants urge in considering the overall circu1nstances herein that "good cause 11 exists for the delay in 1naking this cross 1notion and that leave should be granted. Next, defendants argue that they have met tl1eir burden for su1nmary judgment dis1nissing plaintiffs' second and third causes of action as a matter of law. They contend they are entitled to stnn1nary judgment dis1nissal as plaintiffs breached the srune tenns of 1 Filing of the note of issue herein occurred on January 27, 2020, a day ahead of the Ja11uary 28, 2020 deadline for such filing, which inade Marcl127, 2020 tl1e 'due' date for filing defendants' cross motion. 5 5 of 17 [*FILED: 6] KINGS COUNTY CLERK 05/21/2021 04:09 PM NYSCEF DOC. NO. 96 INDEX NO. 520301/2016 RECEIVED NYSCEF: 05/21/2021 the same buyout agreement they are alleged to have breached. They clai1n that the record herein shows that plaintiffs unilaterally changed the terms and conditions of the Barringer order, without defendant Means' prior consent or mutual agreement. More specifically, defendants allege that plaintiff Vazquez withheld items from the Barringer order, changed payment ter1ns ffo1n "upon receipt" to "pre-payment" and failed to physically deliver the order to Means and Scholastic. Defendants conte11d that Vazquez's own unilateral breaches of the Barringer order guidelines, markups and payment ter1ns and conditions justified defendant Means' refusal to pay the disputed $12,704 for that order. Vazquez's breach, defendants allege, is not in dispute, and, in turn, also constitutes a breach of the August 2016 buyout agreement. Consequently, defendants concludes that Means and Scholastic were no longer obligated to honor or pay for the order and that plaintiffs second cause of action should be dis1nissed. Lastly, defendants argue that plaintiffs fail to sufficiently plead damages relating to the third cause of action as part of their breach of contract clai1ns. Defendants contend there are insufficient facts to shO\V how the breach caused plaintiffs' injury or to support a damages claim and that the third cause of action does not specify an amount of alleged damages. Hence, defendants view the pleading as speculative and fatally deficient. They further claim that Vazquez repeatedly violated the August 2016 buyout agreement and unilaterally changed payment and delivery terms and markups for no reason. Defendants regard these violations as deliberate, as breaching the buyout agree1nent and voiding the agree1nent' s exclusivity provision. These 1nultiple and repeated breaches in defendants' view no longer obligated them to honor the exclusivity 6 6 of 17 [*FILED: 7] KINGS COUNTY CLERK 05/21/2021 04:09 PM NYSCEF DOC. NO. 96 INDEX NO. 520301/2016 RECEIVED NYSCEF: 05/21/2021 provision and legally permitted the1n to use otl1er vendors to fulfill their apparel needs. Defendants' Opposition and Reply Defendants state that it has always been defendant Mean's intention to reilnburse the startup costs to Alvaro and Maria Vazquez and that he has made several good faith offers to pay back these costs during this litigation to resolve that dispute. Additionally, defendants acknowledge that the startup costs may be ordered by the court. Nonetheless, in opposition to plaintiffs' partial su1n1nary judgment motion, defendants assert that plaintiffs have not na1ned a necessary party to this action, i.e. Maria Vazquez. It is argued that plaintiffs' failure to na1ne her as a necessary party sl1ould be considered and applied to any startup costs award. Defendants argue that any award to Alvaro Vazquez personally should be reduced by 50% due to plaintiffs' failure to add Maria Vazquez as a necessary party considering tl1at the record shows that she initially owned a 25% share of Scholastic and was a signatory to the buyout agreement. Additionally, defendants note that the initial $30,000 check paid by Means for the full interest purchase of Scholastic was made payable to both Alvaro and Maria Vazquez and that the answer pleads failure to na1ne all necessary parties as an affinnative defense. Defendants posit tl1at any award for startup cost alleged in the first cause of action should be reduced by half given tl1e 01nission of not naming Maria Vazquez herein. As to the second cause of action, defendants contend that plaintiffs have failed to 1neet their burden of proof and reiterate the argu1nent in their cross motion that plaintiffs breached the agree1nent, inaking it unenforceable, and thereby both relieving defendants of an obligation to perform under the contract and precluding plaintiffs' recovery. 7 7 of 17 [*FILED: 8] KINGS COUNTY CLERK 05/21/2021 04:09 PM NYSCEF DOC. NO. 96 INDEX NO. 520301/2016 RECEIVED NYSCEF: 05/21/2021 Consequently, defendants conclude that plaintiffs' partial summary judgment motion as to the second cause of action should be denied in its entirety as a 1natter of law. In reply and further support of their cross motion, defendants claim the record shows that Means paid all tl1e invoices, except the Barringer order, in accordance with the mutually agreed terms. Means attributes his veering from the agreement to place orders with plaintiff Solutions when Vazquez unilaterally changed the payment terms and 1narkups. Defendants clai1n it is undisputed that Vazquez deviated from the original "tnutually agreed upon" terms and conditions wlthot1t Means' express input and mutual agreement. Such unilateral changes, defendants sub1nit, justified Means canceling certain orders, ending his relationship with Vazquez and Solutions a11d placing orders with other apparel vendors. In addition, defendants argue that plaintiffs' third cause of action for specific performance of an exclusivity provision in the subject agreement is 1noot and should be dis111issed because tl1e three-year exclusivity provision expired on August 15, 2019. Further, defendants argue that plaintiffs filed their opposition papers late, have no justifiable excuse for the late filing and denying plaintiffs' partial summary judgment motion is warranted on this basis. In any .event, defendants urge disregarding the allegedly self-serving affidavits plaintiffs attached to their opposition papers to create 1naterial factual issues as they view them as meritless and contradicted by the record. Plaintiff's Cross Motion and Reply Plaintiffs contend in seeking arnendtnent of their third cause of action that initially the da1nages suffered were unla1own and that it was not possible to predict the da1nages 8 8 of 17 [*FILED: 9] KINGS COUNTY CLERK 05/21/2021 04:09 PM NYSCEF DOC. NO. 96 INDEX NO. 520301/2016 RECEIVED NYSCEF: 05/21/2021 that would be suffered over the exclusivity period's three-year tenn. Originally, plaintiffs sought only specific perfonnance of the agree1nent's exclusivity provision, but now with discovery complete, they claim they are now able to calculate and prove the monetary damages suffered. Defendants, they argue, will not be prejudiced by the amendment of plaintiffs' third cause of action and ad damnum clause as the a1nend1nent would 011ly change equitable relief to 1nonetary damages. Plaintiffs assert that the amend1nent is not palpably insufficient or patently devoid of merit, is merely a demand for monetary damages to be proven at trial and is supported by documents defendants produced. They further highlight that leave to amend a pleading should be freely given in the court's discretion and the a1nendment essentially seeks to conform the pleadings to the documents produced in discovery. On these bases, plaintiff seeks a1nendment of its co1nplaint. In opposition to defendants' cross motion, plaintiffs assert that the da1nages sougl1t in the third cause o-f action, though originally unkno\:vn, were not "speculative," and are lmowable. Plaintiffs also argue that their own separate cross motion to amend only concer11s the third cause of action, and su1nmary judgment in any event can still be granted on their first and second causes of action. In further opposition to defendants' cross motion, plaintiffs inaintain their entitle1nent to recover tl1e full contract price because defendant Scholastic failed to pay for unique, custo1n-1nade items. Plaintiffs explain that the Barringer purchase order predated the subject agreement and is governed by its own terms. Consequently, the branch of defendants' cross inotion for summary judgment dismissing the second cause of 9 9 of 17 [*FILED: 10] KINGS COUNTY CLERK 05/21/2021 04:09 PM NYSCEF DOC. NO. 96 INDEX NO. 520301/2016 RECEIVED NYSCEF: 05/21/2021 action should be denied. Plaintiffs additionally claim that even if the Barringer purchase order occurred after tl1e date of the buyout agree1nent, they did not violate the "inutually agreed order processing guidelines and tnarl(-Up fees" provision of the buyout agree1nent (see NYSCEF Doc No. 49, ~ 2, annexed as exhibit I to defendants' cross motion). The Barringer purchas'e order's payment ter1n, plaintiffs maintain, was always "due 011 receipt." J>Iaintiff Solutions asserts it perfor1ned its part of the Barringer purchase order by producing the custom-decorated apparel without requiring prepayment by defendant Scholastic and was prepared to release the finished goods upon payment by Scholastic at the time of pickup. Relying also on the New York Uniform Commercial Code and case law, plaintiffs contend they are entitled to the full $12,704.00 contract price of the Barringer purchase order. Plaintiffs argue that Scholastic breached the Barringer purchase order as that order sought custo1n-decorated apparel, unique to Scholastic's specific custo1ner, wl1ich was specially produced for that order, and Sc1101astic failed to 1nake payment upon delivery. Plaintiff'.s also counter that the clothing items had no resale value to another custo111er. Additionally, plaintiffs argue that an adequate defense to their first cause of action is not provided because defe11dants' aQvice from his counsel to deposit the payments to an escrO\V account does not justify the breach. An atte1npt to gain a tactical advantage, plaintifis assert) is not a legal justification for breaching a contract and in their view warrants de11ying def'endants' 1notion. Plaintiffs sub111it in their reply that Vazquez' wife, Maria, is not a necessary party to this action because she assigned her interest in the agree1nent and claims against 10 10 of 17 [*FILED: 11] KINGS COUNTY CLERK 05/21/2021 04:09 PM NYSCEF DOC. NO. 96 INDEX NO. 520301/2016 RECEIVED NYSCEF: 05/21/2021 defendants to her husband, plaintiff Alvaro Vazquez. Plaintiffs assert that Maria did not want to be part of this litigation, and she and her husband, as a married couple, are one econo111ic unit. Therefore, plaintiffs assert that Maria Vazquez is not a necessary party to this action. Plaintiffs also argue in reply that the deteriorating relationship between the parties does not excuse defendants' breach and relieve them of meeting the ter1ns of tl1eir agreement. Plaintiff Vazquez argues that the toxicity of the parties' relationship is irrelevant since defendants signed the agreement and thus were obligated to 1neet its ter1ns. Plaintiffs also argue tl1at there was no "double dipping" on certain jobs; that deposition testi1nony confir1ns that Mr. Vazquez had made an error in calculating the amounts to be credited to Scholastic; and that he corrected the calculation immediately wl1en brought to his attention. Plaintiffs additionally note that the buyout agree1nent contained no provision for a lump sum payment. In su1runary, plaintiffs affinn they did not breach the agree1nent and that defendants have not rei1nbur'sed any a1nount for t11e staitup costs and not paid for delivered custom goods. Discussio11 Su1nmary judg1nent is a drastic remedy that deprives a litigant of his or her day in court, and thus, should only be employed when there is no doubt as to the. absence of triable issues of material fact (Kolivas v Kirchoff, 14 AD3d 493 [2d Dept 2005]; see also Andre v Pomeroy, 35 NY2d 361, 364 [1974]). "The proponent of a motion for summary judgment inust n1ake a prima facie showing of entitlement to judgment, as a 1natter of law, tendering sufficient evidence to de1nonstrate the absence of any inaterial issues of 11 11 of 17 [*FILED: 12] KINGS COUNTY CLERK 05/21/2021 04:09 PM NYSCEF DOC. NO. 96 INDEX NO. 520301/2016 RECEIVED NYSCEF: 05/21/2021 fact" (Manicone v City of New York, 75 AD3d 535, 537 [2d Dept 2010]). If it is determined that the 111ovant has made such showing, "the burden sl1ifts to tl1e opposing party to produce evidentia1y proof in admissible form sufficient to establish the existe11ce of rnaterial issues of fact which require a trial of the action" ( Ge11suale Can1panelli & Assoc., P.C., 126 AD3d 936, 937 [2d Dept 2015] quoting Garnham & Han Real Estate Brokers v Oppenheimer, 148 AD2d 493, 494 [2d Dept 1989]). "[I]ssue-finding, rather tha11 issue-deter1nination, is the key to the procedure" (Sillman v Twentieth Century-Fox Film Corp, 3 NY2d 395, 404, rearg denied 3 NY2d 941 [1957] [internal citations omitted]). "The court's function on a motion for summary judgment is 'to deter1nine whether 1naterial factual issues exist, not resolve such issues'" (Ruiz v Griffin, 71 AD:ld 1112, 1115 [2d Dept 2010], quoting Lopez v Beltre, 59 AD3d 683, 685 [2d Dept 2009]). Initially, defenda11ts' cross motion for leave to move for sum1nary judgment is granted as good cause is shown for the delay given the health crisis of the Covid-19 pandemic and executive orders extending the deadlines to file 1notions. Specifically, "[o]n March 7, 2020, Governor Andrew M. Cuomo issued Executive Order 202, which declared a disaster emergency in New York State due to the COVID19 pandemic and temporarily suspended and/or modified certain laws of the State of New York. This included suspending the filing of all motions except those deemed essential until April 19, 2020. Further Executive Orders were issued that continued to extend the suspension, including on July 6, 2020, an Executive Order extending the filing of motions to August 5, 2020" (Mi/ea v Shorefront Operating LLC, 2021 NY Slip Op 30645[U], *5 [Sup Ct, Kings County 2021 ]). 12 12 of 17 [*FILED: 13] KINGS COUNTY CLERK 05/21/2021 04:09 PM NYSCEF DOC. NO. 96 INDEX NO. 520301/2016 RECEIVED NYSCEF: 05/21/2021 "Under the circ_umstances of the Covid-19 pandemic and the Executive tolling orders tl1at followed[,] the motion will be deemed timely and will be considered on the merits" (Campos v Unique Devs. Holdings Corp., 2021 NY Slip Op 30! !3[U], *3 [Sup Ct, Kings County 2021]). Further, no arguments are offered in opposition to defendants' motion for leave to move for sununary judgment. Here, there are considerable facts in dispute that bar summary judg1nent as to the second and third causes of action. Each party argues that there are no facts in dispute, but the filings establish the opposite. As to the second cause of actio11 concerning payment for uniquely-made items, plaintiffs state that the goods were delivered and accepted by defe11dant and there has been no payment. To the contrary, defendants state that tl1e order was not delivered, and they did not take possession. Next, plaintiffs state that defendants approved the ter1ns of the order that was to be paid on delivery and that the Barringer order predated the subject agreement. However, defendants state that plaintiffs changed the terms of the order relying on plaintiff Vazquez's deposition testimony. Vazquez' deposition testimony relied upon by defendants references an e1nail that provides that Vazquez changed tl1e pay1nent terms fro1n due on receipt to prepaid and that this was not a mutually agreed upon change. Defendants assert that plaintiffs breached the terms of their buyout agreement by unilaterally changing the terms of the Barringer order without prior consent or mutual agreen1ent. Whether the Barringer order predated the subject agree1nent, as contended by plaintif'fs, is also an issue for trial, as that question is not conclusively established by the evidence presented. There are also questiOJ1S as to "double dipping" on certain jobs with Vazquez's ad1nission that he 1nade errors that were corrected. 13 of 17 Defendants aver that [*FILED: 14] KINGS COUNTY CLERK 05/21/2021 04:09 PM NYSCEF DOC. NO. 96 INDEX NO. 520301/2016 RECEIVED NYSCEF: 05/21/2021 plaintiffs withheld the product, changed payment tenns from "upon receipt" to "prepayment" and failed to deliver the order to defendants. The facts concerning whether the parties breached the subject agreement are thus disputed. As to the third cause of action, defendant Means contends that plaintiff Solutions 'vas charging defendant Scholastic a higher price than should be charged as contentions between tl1e parties increased. Defendants also allege that there were unjustified markups and packages being held that fermented further toxicity between the parties. Defendants claim that Vazquez repeatedly violated the terms of the August 2016 buyout agreement with Means; that tl1ese violations were deliberate; in breach of the buyout agreement; and voided the exclusivity provision of the agreement. Whether the exclusivity agreement was voided by the parties' actions presents an issue for the trier of facts to decide. Factual questions concerning the exclusivity provision and whether it was breached are outstanding and are 11ot resolved by these motions-. Further, defe11dants submit that there are i11suf.ficient facts to establish how plaintiff' was injured concerning the exclusivity clause. It is for the trier of facts to decide whether there were unilateral changes, whether the parties deviated from the "mutually agreed upon" terms and conditions, and whether defendants were justified in canceling certai11 orders and in their relationship with plaintiffs. However, plaintiffs' partial su111mary judgment motion as to its first cause of action is granted as defendants do not dispute the- total sum claimed for the startup cost and ackt1owledge that the court 111ay grant recovery of the startup cost agreed to between the parties. The only defense to this claim is that a necessary party \Vas not na1ned 14 14 of 17 i11 this [*FILED: 15] KINGS COUNTY CLERK 05/21/2021 04:09 PM NYSCEF DOC. NO. 96 INDEX NO. 520301/2016 RECEIVED NYSCEF: 05/21/2021 action. However, that argument is adequately rebutted by Maria Vazquez's affidavit where she attests that she was not reimbursed for the startup cost as required under the agreement and has assigned all her legal claims against defendants to plaintiffs in writing (see NYSCEF Doc Nos. 86-87). The evidence demonstrates that plaintiff Vazquez has legal authority to claim his wife's interest in this action. Consequently, plaintiffs have demonstrated, as to its first cause of action, that there are no material facts in dispute and establisl1ed each ele1nent, tl1ereby entitling the1n to summary judgment in their favor. Concotnitantly, plaintiffs' motion to amend its co1nplaint is granted as no prejudice against defendants is shown and amendments to pleadings should be freely granted absent prejudice or surprise. "A rnotion for leave to a1nend a pleading 1nay be made at any time, and leave shall be freely given upon such terms as may be just" (R&G Brenner Income Tax Consultants v Gilmartin, 166 AD3d 685, 687 [2d Dept 2018] citing CPLR 3025 [b] [internal quotation marks omitted]). Further, plaintiff is not seeking to add a cause of action, but, instead, to change the relief sought from equitable to monetary. Contrary to defendants' contention, delay alone is not sufficient to deny leave to amend the pleading, as the delay 1nust be coupled with significant prejudice to de·fendant and mere exposure to more liability will also not suffice to deny amendment (id.). Consequently, plaintiffs are granted leave to file and serve an amended complaint on defendants to change plaintiff Active World Solutions, Inc.'s ad damnurn clause in its third cause of action fro1n one for specific perfor1nance of an exclusive supply contract to one for 1nonetary damages for breach of the same contract. Furthennore, defendants' cross motion to dismiss plaintiffs' third cause of action is denied as the issue has .not been rendered moot. 15 15 of 17 [*FILED: 16] KINGS COUNTY CLERK 05/21/2021 04:09 PM NYSCEF DOC. NO. 96 INDEX NO. 520301/2016 RECEIVED NYSCEF: 05/21/2021 The court has considered the parties' remaining contentions and finds them unavailing. All relief not expressly granted herein is denied. Accordingly, it is ORDERED that the branch of plaintiffs' partial summary judgment motion, mot. seq. two, for an order granting them partial summary judgment on their first cause of action against defendants for breach of contract in the amount of $30,572.00, is granted; and it is further ORDERED that the branch of plaintiffs' partial summary judgment motion, mot. seq. two, for an order granting them partial summary judgment on their second cause of action against defendants for breach of contract in the amount of $12,704.00, is denied; and it is further ORDERED that the branch of defendauts' cross motion, mot. seq. three, for leave to inove for partial su1n1nary judgment on "good cause11 shown is granted; and it is further ORDERED that the branch of defendants' cross motion, mot. seq. three, for an order granting partial su1n1nary judgment and dismissing plaintiffs' second and third causes of action in tl1eir entirety as a matter of law is denied; and it is further ORDERED that plaintiffs' cross motion, in mot. seq. four, for an order for leave to file and serve an amended complaint on defendants to change plaintiff Active World Solutions, Inc.'s ad damnu1n clause in its third cause of action fro1n one for specific performance of' an exclusive supply contract to one for monetary da1nages for breach of the san1e contract is granted. 16 16 of 17 [*FILED: 17] KINGS COUNTY CLERK 05/21/2021 04:09 PM NYSCEF DOC. NO. 96 INDEX NO. 520301/2016 RECEIVED NYSCEF: 05/21/2021 This constitutes the decision and order of the court. J. . C. HON. RE CE KNfPEL ADMINISTRA !VE JUDGE 17 17 of 17

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