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Team Mktg. USA Corp. v. Power Pact, LLC

Supreme Court of New York, Appellate Division, Third Department

June 7, 2007, Decided; June 7, 2007, Entered



 [**243]  [*939]  Mercure, J.P. Appeal from an order of the Supreme Court (Kavanagh, J.), entered October 4, [**244]  2006 in Ulster County, which, inter alia, granted defendant's motion to dismiss the complaint.

 [*940]   In March 2005, the parties entered into a contract in which plaintiff agreed to staff various Toyota promotional marketing events. The proposed schedule of events, which was incorporated into the contract by reference, called for 17 to 22 events from April through December 2005. After the first event, defendant advised plaintiff that Toyota had changed the proposed schedule and that the future of the entire program was in question. Defendant asserts that plaintiff thereafter agreed to staff promotions on an "event-by-event basis"; plaintiff asserts that defendant cancelled the contract and that plaintiff separately agreed to staff only events that were not part of the original schedule. [***2]  In June 2005, plaintiff informed defendant that due to defendant's "inefficient practices," plaintiff had "decided not to staff the Toyota program going forward." Plaintiff sent defendant an invoice for $7,826.55, representing a cancellation fee pursuant to the original contract. Defendant denied any obligation to pay this cancellation charge, claiming that plaintiff itself had cancelled the contract.

Plaintiff then commenced this action against defendant for breach of contract, unjust enrichment, account stated and reasonable counsel fees under the terms of the contract. Supreme [****2]  Court granted defendant's motion to dismiss the complaint, 1  finding that plaintiff failed to state a cause of action and had waived its entitlement to the cancellation fee because it failed to send an invoice to defendant within 30 days of the claimed cancellation date, as required by the contract. Plaintiff appeals and we now reverse that part of Supreme Court's order that dismissed plaintiff's breach of contract and reasonable counsel fees claims.

] In resolving a CPLR 3211 (a) (7) motion to dismiss for failure to state a cause of action, "the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19, 832 NE2d 26, 799 NYS2d 170 [2005]; see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591, 842 NE2d 471, 808 NYS2d 573 [2005]). Moreover, "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" (Leon v Martinez, 84 NY2d 83, 88, 638 NE2d 511, 614 NYS2d 972 [1994]). Here, the contract, which was annexed to the complaint, expressly provides that a cancellation charge of "10% of [t]otal staffing fee is payable for coordination, talent fees and accounting if cancellation [occurs] after execution of agreement."  [*941]  Cancellations are stated to include, among other things, "[p]ostponements, reschedules, weather issues and refusal of event site or [defendant] to allow talent to execute event." It is undisputed that on May 13, 2005--after only a single promotional even--the remaining events were either rescheduled or cancelled. In our view, given the express language of the [***4]  contract, plaintiff has sufficiently pleaded a cause of action for breach of contract (see Leon v Martinez, supra at 88-89; cf. EBC I, Inc. v Goldman, Sachs & Co., supra at 22).

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41 A.D.3d 939 *; 839 N.Y.S.2d 242 **; 2007 N.Y. App. Div. LEXIS 6846 ***; 2007 NY Slip Op 4751 ****

 [****1]  TEAM MARKETING USA CORPORATION, Appellant, v POWER PACT, LLC, Respondent.


cancellation, cancellation fee, promotions, invoice, parties, force majeure, counsel fees, waived

Civil Procedure, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Appeals, Standards of Review, Questions of Fact & Law, Contracts Law, Contract Conditions & Provisions, Waivers, General Overview, Contract Interpretation