| Lansco Corp. v Kampeas |
| 2011 NY Slip Op 06188 [87 AD3d 421] |
| August 4, 2011 |
| Appellate Division, First Department |
| The Lansco Corporation, Respondent, v Jacky Kampeas etal., Appellants. |
—[*1] Lionel A. Barasch, New York, for respondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 8, 2010,which, in this breach of contract action, granted so much of plaintiff's cross motion as soughtsummary judgment as to liability and denied defendants' motion to dismiss the complaint,unanimously modified, on the law, to grant defendants' motion to the extent of dismissing thecomplaint against Jacky Kampeas and amending the caption and complaint to substitute asdefendant Senkam Inc. in place of Samcek Inc., and to deny so much of plaintiff's cross motionas sought summary judgment as to liability, and otherwise affirmed, without costs. The Clerk isdirected to enter judgment dismissing the complaint as against Jacky Kampeas.
The record establishes that plaintiff misnamed the corporate signatory to the parties'agreement, and that there was no wrongful conduct by the individual defendant. Accordingly, theIAS court should have granted defendants' motion to dismiss to the extent of dismissing thisaction against the individual defendant (cf. Imero Fiorentino Assoc. v Green, 85 AD2d419, 420-421 [1982]), and amending the caption and complaint to substitute as the correctlynamed corporate defendant Senkam Inc., which has consented to such substitution (seegenerally Le Sannom Bldg. Corp. v Lassen, 173 AD2d 249, 249-250 [1991]).
The court also should have denied so much of plaintiff's cross motion as sought summaryjudgment as to liability. Contrary to defendants' contention, their attempt to orally terminate theagreement was ineffective, because the agreement required that it be terminated in writing andcontained an integration and no oral modifications clause (see Chemical Bank vWasserman, 37 NY2d 249, 251-252 [1975]). However, defendants raised an issue of fact asto whether plaintiff had deprived defendants of the benefit of their bargain and thus violated thecovenant of good faith and fair dealing. In particular, defendants presented evidence thatplaintiff's conduct in attempting to re-lease the space so alienated the landlord that it expresslyrefused to approve any tenant procured by plaintiff (see generally Ellison v Island Def Jam Music Group, 79 AD3d 458[2010]).
Contrary to defendants' contention, there is nothing inherently unconscionable about anonreciprocal attorney's fee provision in a commercial contract (see e.g. 57 Kingsland Realty Corp. v 57Kingsland Food Corp., 30 Misc 3d 1227[A], 2011 NY Slip Op 50236[U], *2-3 [2011]).Accordingly, defendant Senkam is not entitled to dismissal of plaintiff's second cause [*2]of action for costs and attorney's fees. Concur—Tom, J.P.,Mazzarelli, Acosta, DeGrasse and RomÁn, JJ.