| McFadyen Consulting Group, Inc. v Puritan's Pride, Inc. |
| 2011 NY Slip Op 06252 [87 AD3d 620] |
| August 16, 2011 |
| Appellate Division, Second Department |
| McFadyen Consulting Group, Inc., Respondent, v Puritan'sPride, Inc., Appellant. |
—[*1] Twomey, Latham, Shea, Kelley, Dubin & Quartararo, LLP, Riverhead, N.Y. (Patrick B. Fifeand Stephen B. Latham of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Suffolk County (Emerson,J.), dated April 6, 2010, as granted those branches of the plaintiff's motion which were forsummary judgment on the causes of action to recover damages for breach of contract and basedupon an account stated, and awarded the plaintiff damages in the sum of $780,302.96, and forsummary judgment dismissing the defendant's counterclaim alleging fraudulentmisrepresentation and so much of the defendant's counterclaim alleging breach of contract assought to recover amounts paid or payable to the plaintiff under the contract.
Ordered that the order is affirmed insofar as appealed from, with costs.
In July 2008, the plaintiff, McFadyen Consulting Group, Inc. (hereinafter McFadyen),entered into a master services agreement (hereinafter the contract) with the defendant, Puritan'sPride, Inc. (hereinafter PPI), to perform computer programming services with respect to PPI'slaunch of an "entirely new" "e-commerce platform." Under the terms of the contract, McFadyenwas to submit invoices to PPI on a semimonthly basis. Further, PPI was required to notifyMcFadyen of any dispute with respect to any invoice, in writing, within 15 days after submissionof the invoice. Failure to enforce a contract provision was not to be deemed a waiver of thecontract provision, and modification of any contract term was required to be in writing, signed byrepresentatives of both McFadyen and PPI. McFadyen's sole liability for its failure to deliver itsservices would be forfeiture of any "money yet to be earned" and termination of the contract.Neither party was to be liable to the other for "INCIDENTAL, INDIRECT, SPECIAL ORCONSEQUENTIAL DAMAGES OF ANY KIND . . . INCLUDING LOSS OFPROFIT." McFadyen warranted that it would perform the services required under the contract ina workmanlike and professional manner. Either party could cancel the contract on 30 days'written notice. Finally, the contract provided that McFadyen would be entitled to reasonableattorneys' fees in the event it became necessary for McFadyen to resort to legal action to collectamounts due under the contract and McFadyen was successful in such action.[*2]
In December 2008, PPI terminated the contract because itallegedly was dissatisfied with McFadyen's performance. It had not paid invoices submitted inOctober, November, or December of 2008. In April 2009, McFadyen commenced this action torecover damages for breach of contract and based upon an account stated, and for attorneys' feesas provided for in the contract. PPI asserted counterclaims, inter alia, alleging breach of contractand fraudulent misrepresentation. Eventually, McFadyen moved for summary judgment on thecomplaint and dismissing PPI's counterclaims. The Supreme Court granted McFadyen's motion,and PPI appeals from so much of the order as awarded summary judgment to McFadyen on itscauses of action alleging breach of contract and based upon an account stated and dismissing itscounterclaim alleging fraudulent misrepresentation and so much of its counterclaim allegingbreach of contract as sought to recover certain amounts paid for McFadyen's allegedly defectiveperformance of its services.
Inasmuch as PPI failed to show that facts essential to justify opposition may exist uponfurther discovery, the Supreme Court properly rejected PPI's contention that McFadyen's motionfor summary judgment was premature (see Vidal v Tsitsiashvili, 297 AD2d 638, 638-639[2002]; Mazzaferro v Barterama Corp., 218 AD2d 643 [1995]; Noy v Everest Equities, Inc., 27 AD3d629 [2006]).
McFadyen established its prima facie entitlement to judgment as a matter of law on its causeof action alleging breach of contract by establishing that after it submitted the invoices that are atissue on this appeal, PPI did not dispute those invoices in the manner provided in the contractand did not pay the amounts due (seeCastle Oil Corp. v Bokhari, 52 AD3d 762 [2008]). In opposition, PPI did not raise atriable issue of fact as to whether it timely gave written notice to McFadyen that it disputed anyof the invoices at issue, or as to whether McFadyen waived, either orally or in writing, therequirement of timely written notice of disputes as to invoices (see Brooklyn Navy YardCogeneration Partners v PMNC, 277 AD2d 271, 272 [2000]; cf. Tridee Assoc., Inc. v Board of Educ. ofCity of N.Y., 22 AD3d 833, 834 [2005]; Bank Leumi Trust Co. of N.Y. v Block3102 Corp., 180 AD2d 588, 589-590 [1992]). Consequently, the Supreme Court properlyawarded summary judgment to McFadyen on its cause of action alleging breach of contract. TheSupreme Court also properly awarded summary judgment to McFadyen on its cause of actionbased upon an account stated.
McFadyen also established its entitlement to judgment as a matter of law dismissing PPI'scounterclaim alleging fraudulent misrepresentation (see J.M. Bldrs. & Assoc., Inc. v Lindner, 67 AD3d 738, 741[2009]; WIT Holding Corp. v Klein, 282 AD2d 527 [2001]; Glassman v Catli,111 AD2d 744, 745-746 [1985]; see also Non-Linear Trading Co. v Braddis Assoc., 243AD2d 107, 118 [1998]) and so much of PPI's counterclaim alleging breach of contract as soughtto recover certain amounts paid to McFadyen under the contract (see Peluso v TauscherCronacher Professional Engrs., 270 AD2d 325 [2000]). In opposition, PPI failed to raise atriable issue of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]). Skelos, J.P.,Balkin, Leventhal and Lott, JJ., concur.