Mark Bruce Intl., Inc. v Blank Rome, LLP

2009 NY Slip Op 02254 [60 AD3d 550]

March 24, 2009

Appellate Division, First Department

As corrected through Wednesday, May 6, 2009

Mark Bruce International, Inc., Appellant, v Blank Rome,LLP, Respondent.

—[*1]Gibbons, P.C., New York (Jeffrey A. Mitchell of counsel), for appellant.

Blank Rome, LLP, New York (Harris N. Cogan of counsel), for respondent.

Order, Supreme Court, New York County (Herman Cahn, J.), entered May 30, 2008, which,in an action for breach of contract and unjust enrichment, granted defendant's cross motion forsummary judgment dismissing the complaint and denied plaintiff's motion for summaryjudgment, unanimously affirmed, without costs.

The exchange of e-mails, which did not set forth the fee for plaintiff's services or anobjective standard to determine it, was too indefinite to be enforceable (see generally CobbleHill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 482-484 [1989], cert denied498 US 816 [1990]). The standard of reasonableness, left for future determination by theparties themselves, rather than by a third party, was not made objective by the implied duty todetermine the amount of the fee in good faith. Furthermore, the unjust enrichment claim wasproperly dismissed as it is duplicative of the breach of contract claim (see Andrews vCerberus Partners, 271 AD2d 348 [2000]). Concur—Friedman, J.P., Sweeny,Renwick and Freedman, JJ. [See 19 Misc 3d 1140(A), 2008 NY Slip Op 51081(U).]