Noor Staffing Grp. v. Christoforou-Gioules

• Decision Date: 10 June 2022
• Docket Number: 651459/2018
• Citation: 2022 NY Slip Op 31853 (U)
• Parties: NOOR STAFFING GROUP, LLC, Plaintiff, v. IRENE CHRISTOFOROU-GIOULES, MARIA PANAYIOTOU-MAMOUNAS Defendants.
• Court: New York Supreme Court

2022 NY Slip Op 31853(U)

NOOR STAFFING GROUP, LLC, Plaintiff,
v.
IRENE CHRISTOFOROU-GIOULES, MARIA PANAYIOTOU-MAMOUNAS Defendants.

No. 651459/2018

Supreme Court, New York County

June 10, 2022

Unpublished Opinion

DECISION+ ORDER ON MOTION

DATE JOEL M. COHEN, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 70, 73 were read on this motion for PARTIAL SUMMARY JUDGMENT

Upon the foregoing document, and in consideration of oral argument on February 25, 2020 before Justice Scarpulla, it is

ORDERED that Defendants' motion for partial summary judgment striking Plaintiffs claim for expectation damages is granted.^[1]

The only remaining claim in this action is that Defendants breached a duty in the Employment Agreement to negotiate in good faith a separate administrative-services agreement between Plaintiff and Defendants' company, nonparty All in 1 SPOT ("All in 1"). The plain

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language of the Employment Agreement makes clear that the successful negotiation of an administrative-services agreement between All in 1 and Plaintiff was a condition precedent to any contractual obligation to retain Plaintiff.^[2] It is well settled that "parties may enter into a binding contract under which the obligations of the parties are conditioned on the negotiation of future agreements. In such a case, the parties are obliged to negotiate in good faith. But that obligation can come to an end without a breach by either party" (IDT Corp. v Tyco Group, S.A.R.L., 23 N.Y.3d 497, 502 [2014]). Defendants' obligation under the Employment Agreement in this respect was to negotiate in good faith. Defendants were "neither bound to agree to [a contract] nor to continue the negotiating process" (Goodstein Constr. Corp. v City of New York, 80N.Y.2d366, 373 [1992]).

In similar circumstances, courts have held that "lost profits are not available where no agreement is reached" (L-7 Designs, Inc. v Old Navy, LLC, 647 F.3d 419, 431 [2d Cir 2011], citing Goodstein, 80 N.Y.2d at 374). Rather, "out-of-pocket costs incurred in the course of good faith partial performance are appropriate" (L-7 Designs, 647 F.3d at 431; Arcadian Phosphates, Inc. v Arcadian Corp., 884 F.2d 69, 74 n. 2 [2d Cir 1989]). Allowing expectation damages "would be basing damages ... on the prospective terms of a nonexistent contract which the

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[defendant] was fully at liberty to reject. It would, in effect...