Korff v. Corbett

• Decision Date: 10 May 2005
• Docket Number: 4799.,4799A.
• Citation: 2005 NY Slip Op 03780,794 N.Y.S.2d 374,18 A.D.3d 248
• Parties: JOSEPH KORFF, Appellant, v. RICHARD A. CORBETT et al., Respondents.
• Court: New York Supreme Court — Appellate Division

18 A.D.3d 248

794 N.Y.S.2d 374

2005 NY Slip Op 03780

JOSEPH KORFF, Appellant, v. RICHARD A. CORBETT et al., Respondents.

4799.

4799A.

Appellate Division of the Supreme Court of the State of New York, First Department.

May 10, 2005.

Judgment, Supreme Court, New York County (Richard B. Lowe, III, J.), entered April 12, 2004, which dismissed plaintiff's complaint for failure to state a cause of action, unanimously reversed, on the law, without costs, defendants' motion pursuant to CPLR 3211 denied, the complaint reinstated and the matter remanded for further proceedings. Appeal from order, same court and Justice, entered March 31, 2004, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Defendants Richard A. Corbett and the Concorde Companies (formerly known as International Plaza, a Florida partnership) acquired rights to a 35-year leasehold on approximately 135 acres of land adjacent to Tampa International Airport in Florida. In developing this property, defendants engaged plaintiff, an attorney, to provide various business, consulting and legal services. The complaint alleges that during the course of such engagement, defendants repeatedly agreed and assured plaintiff that, given his extraordinary services on their behalf, he would be paid hourly fees and additional compensation based upon the eventual result of any development, transaction or significant financing with respect to the property. In reliance upon such promises, it is alleged, plaintiff worked actively and diligently on behalf of defendants to facilitate the financing and development of the property. The complaint further alleges that during the course of his engagement plaintiff and certain of the defendants entered into a written agreement memorializing the parties' agreement with respect to defendants' payment of outstanding hourly legal fees to the law firms with which plaintiff was affiliated and, with the knowledge of those firms, additional compensation to plaintiff individually for his specified services.

The parties' undated agreement, in the form of a letter from plaintiff to defendant, provided as follows:

"Dear Dick,

"At least one of us had in mind a 50-50 partnership several years ago. To avoid unproductive controversy:

"A. All my firm's legal bills and interest thereon from time to time outstanding will be cleared up out of the first available financing sources. You will pay $25,000 per month against such bills until that time.

"B. The equivalent of $500,000 plus interest at 15% per annum from September 5, 1985 will be paid to me from the first decent term financing source (for example: sale, lease, joint venture, or more than 3 years overall financing).

"C. You will pay upon receipt by International Plaza, its partners or affiliates, 5% of gross receipts (excluding gross receipts from the current golf course operation) until $26,250,000 is paid when the percentage will be 10%. You will determine increases above that percentage amount in your sole discretion."

The document is signed by plaintiff and "Agreed to and accepted by" Richard A. Corbett "on behalf of himself and all entities in which he has an interest" and by "International Plaza a Florida General Partnership By: Richard A. Corbett."

The IAS court, in granting defendants' motion to dismiss for failure to state a cause of action, found that the letter contains nothing to show it was intended to provide plaintiff with additional compensation in connection with the development of the property, to which no reference is made; that the identities of the parties to the agreement are unclear; that, at least, the letter must be construed to pertain only to plaintiff, defendant Corbett and the Concorde Companies; that the start date and duration of the alleged agreement are not clearly defined and there is nothing to indicate when, if ever, the agreement was to terminate; that the essential terms of the agreement cannot be discerned from the submissions; and that the provisions for payment from "the first decent term financing source" and of a percentage of International Plaza's "gross receipts" are simply too indefinite to be enforced as an agreement between the parties. We disagree.

"The doctrine of definiteness or certainty is well established in contract law. In short, it means that a court cannot enforce a contract unless it is able to determine what in fact the...