TRAVELSAVERS ENTERPRISES, INC., Doing Business as TRAVELSAVERS PARTNER SERVICES, Appellant, v ANALOG ANALYTICS, INC., et al., Respondents, et al., Defendant.
Supreme Court, Appellate Division, Second Department, New York
2017
149 AD3d 1003; 53 NYS3d 99
Ordered that the appeals from the orders entered December 4, 2015, and February 24, 2016, are dismissed; and it is further,
Ordered that the judgment is modified, on the law, by deleting the provisions thereof dismissing the first, second, fifth, sixth, and seventh causes of action insofar as asserted against the defendants Analog Analytics, Inc., Barclays Bank Delaware, and Barсlays, PLC, and striking the plaintiff‘s demands for damages in excess of damages recoverable pursuant to a damages limitation clause in the contract; as so modified, the judgment is affirmed, those branches of the motion of the defendants Analog Analytics, Inс., Barclays Bank Delaware, and Barclays, PLC, which were pursuant to
Ordered that the plaintiff is awarded one bill of costs payable by the defendants Analog Analytics, Inc., Barclays Bank Delaware, and Barclays, PLC.
The appeals from the orders must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (sеe Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeals from the orders are brought up for review and have been considered on the appeal from the judgment (see
In January 2012, the plaintiff, a travel marketing company, entered into a contract with the defendant Analog Analytics, Inc. (hereafter Analog), in which they agreed to work together to advertise and market travel deals to consumers through electronic and other media. The defendant Kenneth Kalb is the former chief executive officer of Analog. The defendant Barclays Bank Delaware acquired Analog in May 2012. The defendant Barclays, PLC, is the corporate parent of Barclays Bank Delaware and Analog.
The plaintiff claims that Analog misrepresented its capabilities prior to entering into the contract. Following the execution of the contract, the plaintiff made technical personnel available to Analog to enable electronic communication between marketing systems. The plaintiff claims that Analog failed to distribute offers prepared by the plaintiff, and ultimately attributed its inability to perform to the fact that it was required to cater to the needs of its parent companies. The plaintiff further alleges that Analog then engagеd in competition with the plaintiff, allegedly using the plaintiff‘s trade secrets.
The plaintiff commenced this action asserting, inter alia, causes of action alleging breach of contract, breach of the covenant of good faith and fair dеaling, tortious interference with contract, fraudulent inducement, unjust enrichment, misappropriation of trade secrets, and unfair competition. Analog, Barclays Bank Delaware, and Barclays, PLC (hereinafter collectively the defendants), and Kalb separately moved pursuant to
Thereafter, the defendants moved for summary judgment dismissing the first cause of action, which alleged breach of contract, and the third cause of action, which alleged tortious interference with contract insofar as asserted against them. The Supreme Court granted that motion in an order entered February 24, 2016. Judgment was entered accordingly in favor of the defendants and Kalb, dismissing the complaint insofar as asserted against them.
On a motion to dismiss pursuant to
Contrary to the Supreme Court‘s conclusion, the cause оf action alleging breach of the covenant of good faith and fair dealing is not duplicative of the cause of action alleging breach of contract, or the other causes of action in the complaint, since it alleges thаt Analog engaged in conduct with Barclays Bank Delaware and its parent corporation to realize gains from the plaintiff, while depriving the plaintiff of all benefits of the contract (see Elmhurst Dairy, Inc. v Bartlett Dairy, Inc., 97 AD3d 781, 784 [2012]).
The elements of a cause of action to recover for unjust enrichment are “(1) the defendant was enriched, (2) at the plaintiff‘s expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered” (GFRE, Inc. v U.S. Bank, N.A., 130 AD3d 569, 570 [2015], quoting Mobarak v Mowad, 117 AD3d 998, 1001 [2014]). “[T]he theory of unjust enrichment lies as a quasi-contract
Further, the allegations in the complaint were sufficient to statе a cause of action to recover damages for unfair competition (see Parekh v Cain, 96 AD3d 812, 816 [2012]; Beverage Mktg. USA, Inc. v South Beach Beverage Co., Inc., 20 AD3d 439 [2005]) and misappropriation of trade secrets (see Ashland Mgt. v Janien, 82 NY2d 395, 407 [1993]).
However, the cause of action alleging fraudulent inducement was properly dismissed, based upon the disclaimer clause in the contract (see DiBuono v Abbey, LLC, 95 AD3d 1062, 1064 [2012], citing Danann Realty Corp. v Harris, 5 NY2d 317, 320-321 [1959]). Further, the acts and omissions attributed to Kalb were committed in his capacity as a corporate officer, and the plaintiff failed to adequately allege independent torts committed by him. The plaintiff did not state a cause of action holding him personally liable on the theory that he induced the breach of contract for personal gain (see Baer v Complete Off. Supply Warehouse Corp., 89 AD3d 877, 879 [2011]; Kats v East 13th St. Tifereth Place, LLC, 73 AD3d 706, 708 [2010]; AHA Sales, Inc. v Creative Bath Prods., Inc., 58 AD3d 6, 23 [2008]). Accordingly, the complaint was properly dismissed insofar as asserted against Kalb.
The contract between the plaintiff and Analоg provided that “the sole and complete liability of each party to this agreement to the other party under or in connection with the agreement and any offer shall be limited to the amount actually paid or
The defendants failed to meet their prima facie burden of demonstrating their entitlement to judgment as a matter of law dismissing the breach of contract cause of action insofar as asserted against them (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). While the contract was silent as to a launch date, the law implies a reasonable time for performance (see Savasta v 470 Newport Assoc., 82 NY2d 763, 765 [1993]). The defendants’ submissions in support of their motion failed to establish the absence of triable issues of fact as to whether Analog breached the contract by failing to timely launch the project and as to whether Analog repudiated thе contract by failing to honor its exclusivity provision after Analog merged with Barclays Bank Delaware.
The Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the third cause of action, which alleged tortious interference with contract insofar as asserted against them. New York law applies in this case because the plaintiff is located in New York and the alleged injury occurred in New York (see Sondik v Kimmel, 131 AD3d 1041, 1042 [2015]). “[A] defendant may raise the economic interest dеfense—that it acted to protect its own legal or financial stake in the breaching party‘s business” (White Plains Coat & Apron Co., Inc. v Cintas Corp., 8 NY3d 422, 426 [2007]). Here, Analog and Barclays Bank Delaware, which had merged with each other, and their parent corporation, met their prima facie burden of demonstrating that any interference with the contract between Analog and the plaintiff was justified by their own economic interests (see id. at 426; E.F. Hutton Intl. Assoc. v Shearson Lehman Bros. Holdings, 281 AD2d 362 [2001]; WMW Mach. Co. v Koerber AG., 240 AD2d 400, 401 [1997]). In opposition, the plaintiff failed to raise a triable issue of fact.