Chrysler Capital Corp. v. Hilltop Egg Farms, Inc.

• Decision Date: 23 April 1987
• Parties: CHRYSLER CAPITAL CORPORATION, as Successor to E.F. Hutton Credit Corporation, Respondent, v. HILLTOP EGG FARMS, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1002

514 N.Y.S.2d 1002

129 A.D.2d 927

CHRYSLER CAPITAL CORPORATION, as Successor to E.F. Hutton

Credit Corporation, Respondent, v. HILLTOP EGG FARMS, INC., Appellant.

Supreme Court, Appellate Division,

Third Department.

April 23, 1987.

Baum & Shawn, Monticello (David Gold, of counsel), for appellant.

Javits, Robinson, Brog, Leinwand & Reich, P.C., New York City (Robert M. Milner, of counsel), for respondent.

Before MAHONEY, P.J., and KANE, WEISS, YESAWICH and LEVINE, JJ.

WEISS, Justice.

Appeal (1) from an order of the Supreme Court (Williams, J.), entered October 20, 1986 in Sullivan County, which, inter alia, granted plaintiff's motion for summary judgment, and (2) from the judgment entered thereon.

Plaintiff, as successor in interest to E.F. Hutton Credit Corporation, commenced the instant action to recover rentals and late charges purportedly due under an equipment lease agreement with defendant. In the complaint, plaintiff averred that the parties entered into a "Master Lease Schedule Agreement" (MLA) in December 1982; that despite repeated demands, defendant failed to pay several monthly installments of $4,214.60; and that a principal balance of $96,935.80 plus late charges was due. After defendant submitted a general denial in its answer, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved to dismiss the complaint for failure to state a cause of action, specifically contending that plaintiff omitted the essential terms of the contract by failing to annex the MLA. Plaintiff explained that it failed to annex the MLA to the complaint through clerical error, and attached a copy of same to its attorney's responding affidavit. Supreme Court concluded that the defect in the complaint was corrected by this presentation of the MLA and granted plaintiff summary judgment on the complaint. Defendant has appealed.

Initially, we observe that Supreme Court properly considered the affidavit of plaintiff's attorney, to which the MLA was attached, in determining the sufficiency of the complaint (see, Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635-636, 389 N.Y.S.2d 314, 357 N.E.2d 970; Mihalko v. Blood, 86 A.D.2d 723, 724, 446 N.Y.S.2d 573). The essence of defendant's argument is that even with the additional submissions, the complaint fails to set forth the essential terms of the contract. We agree.

In an action to recover damages for breach of contract, the complaint must, inter alia, set forth the terms of the agreement upon which liability is predicated, either by express reference or by attaching a copy of the contract (see, Griffin Bros. v. Yatto, 68 A.D.2d 1009, 415 N.Y.S.2d 114; Lupinski v. Village of Ilion, 59 A.D.2d 1050, 399 N.Y.S.2d 956; 22 NY Jur2d, Contracts, §§ 380, 383, 384, at 285, 289-291). Here, the complaint specifically refers to the MLA which, as indicated, was subsequently presented in response to defendant's cross motion to dismiss. In relevant part, the MLA, which was signed by the parties on December 31, 1982, provided for the lease of certain equipment as "described in any Schedule now or hereafter * * * executed by the parties". The subject and duration of the lease, the amount of the rent and payment due dates were to be set forth in each schedule....