| MP Innovations, Inc. v Atlantic Horizon Intl., Inc. |
| 2010 NY Slip Op 03370 [72 AD3d 571] |
| April 27, 2010 |
| Appellate Division, First Department |
| MP Innovations, Inc., Appellant, v Atlantic HorizonInternational, Inc., Respondent. |
—[*1] Kelley Drye & Warren LLP, New York (Jonathan K. Cooperman of counsel), forrespondent.
Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered December 23,2009, which, sua sponte, recalled and vacated a prior order, same court and Justice, entered July7, 2009, denying plaintiff's motion for leave to replead as moot, and, upon recall, deniedplaintiff's motion for leave to replead, unanimously affirmed, without costs. Appeal from theJuly 7, 2009 order unanimously dismissed, without costs, as academic.
Plaintiff commenced this action for, inter alia, breach of contract based on allegations that itpresented defendant with a marketing concept for a personal detoxification product, and thatdefendant orally agreed to sell the product and to pay plaintiff a percentage of all salesgenerated. After being advised by defendant that it would not proceed with plans to purchase andresell the product, plaintiff subsequently learned that defendant had indeed been doing so usinginformation plaintiff had provided.
In October 2008, Supreme Court granted defendant's motion to dismiss the complaint, butgranted plaintiff leave to move to replead its causes of action for breach of contract and unjustenrichment. Plaintiff moved for leave to replead and submitted a proposed amended complaintsetting forth causes of action for breach of contract, unjust enrichment and fraud.
The motion court properly denied the motion for leave to replead. Plaintiff concedes that thealleged contract, whereby it was to be paid a six percent commission on all sales of the productfor a three-year term, is governed by the statute of frauds (see General Obligations Law§ 5-701 [a] [10]). The e-mail that plaintiff points to as satisfying said statute, however,does little more than identify the parties' principals. The writing does not, either "expressly or byreasonable implication," identify a number of material terms, including, inter alia, the product,time frame or rate of compensation. Accordingly, the alleged oral agreement is barred by thestatute of frauds (Morris Cohon & Co. v Russell, 23 NY2d 569, 575 [1969]; Nemelka v Questor Mgt. Co., LLC,40 AD3d 505, 506 [2007], lv denied 10 NY3d 705 [2008]).
General Obligations Law § 5-701 (a) (10), by its own terms, applies to implied as wellas express contracts (see Snyder vBronfman, 13 NY3d 504 [2009]). Plaintiff's unjust enrichment claim fails since it is aclaim for reasonable compensation for services rendered in negotiating the purchase or sale of abusiness opportunity and therefore falls [*2]within the ambit ofthe statute of frauds (see General Obligations Law § 5-701 [a] [10]). Thus, even ifwe were to find, as urged by plaintiff, that it need not make a showing that its ideas were novelor original (compare Apfel v Prudential-Bache Sec., 81 NY2d 470 [1993], with American Bus. Training Inc. vAmerican Mgt. Assn., 50 AD3d 219 [2008], lv denied 10 NY3d 713 [2008]),the claim is nevertheless barred by the statute of frauds.
Plaintiff also failed to adequately state a cause of action for fraud. Plaintiff's allegations areessentially that defendant never intended to honor its promise to pay plaintiff a commission forproviding it with the marketing concept for the product, and a fraud claim does not lie where itsimply "alleges that a defendant did not intend to perform a contract with a plaintiff when hemade it" (Gordon v Dino De Laurentiis Corp., 141 AD2d 435, 436 [1988]).
We have considered plaintiff's remaining contentions, including that the motion court failedto apply the correct standard of review for motions for leave to replead, and find themunavailing. Concur—Gonzalez, P.J., Catterson, Moskowitz, Renwick and Richter, JJ.