VERTICAL COMPUTER SYSTEMS INC v. ROSS SYSTEMS INC (2009)

Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered October 11, 2007, after a jury trial, awarding NOW Solutions, LLC in the Ross action $1,943,483 on its first counterclaim, as reduced by a credit for the amount owed on a note, and for attorneys' fees, unanimously affirmed, with costs.   Judgment, same court and Justice, entered July 23, 2008, dismissing the Vertical action as moot, unanimously affirmed, with costs.

 The trial court properly directed a verdict in favor of NOW Solutions based on the unambiguous provision in the asset purchase agreement entitling NOW to a post-closing purchase price adjustment for payments with respect to contracts entered into before the closing date whose periods of maintenance payments go beyond the closing date;  the contrary interpretation proffered by Ross Systems would render the phrase “renewals extending” beyond such date meaningless (see Beal Sav. Bank v. Sommer, 8 N.Y.3d 318, 324, 834 N.Y.S.2d 44, 865 N.E.2d 1210 [2007] ).   This Court is not bound by the law of the case as represented by the motion court ruling (see Liddle, Robinson & Shoemaker v. Shoemaker, 309 A.D.2d 688, 691, 768 N.Y.S.2d 183 [2003] ).   We agree with the trial court that, despite the parties' different interpretations (see Riverside S. Planning Corp. v. CRP/Extell Riverside, --- A.D.3d ----, 869 N.Y.S.2d 511 [2008] ), the provision was unambiguous as reasonably susceptible of only one meaning (see Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 570, 750 N.Y.S.2d 565, 780 N.E.2d 166 [2002] ), and was therefore not subject to interpretation with the aid of extrinsic evidence (see Innophos, Inc. v. Rhodia, S.A., 10 N.Y.3d 25, 29, 852 N.Y.S.2d 820, 882 N.E.2d 389 [2008] ).   In view of the foregoing, even if, arguendo, appellant were correct that the trial court improperly excluded evidence of a business record reflecting the intent of the parties, any such error would be harmless.

 The court properly directed a verdict in favor of NOW regarding liability under a transitional services agreement, aptly recognizing such liability as a set-off to NOW's obligation to make an installment payment on a note, and not subject to the condition that the note be paid first.   Based on all of the governing factors, NOW was the prevailing party entitled, under the asset purchase agreement, to its attorneys' fees in the Ross action (see Solow v. Wellner, 205 A.D.2d 339, 341, 613 N.Y.S.2d 163 [1994], affd. 86 N.Y.2d 582, 635 N.Y.S.2d 132, 658 N.E.2d 1005 [1995] ).   Its dismissed counterclaims did not entail central issues, despite the large recovery sought in one of them, and the result was not “mixed” (cf. Berman v. Dominion Mgt. Co., 50 A.D.3d 605, 859 N.Y.S.2d 407 [2008] ).

 The Vertical action was properly dismissed as moot;  appellant's claim for attorney fees, set forth only in its wherefore clause and not in any counterclaims to which it could be deemed an integral part (cf. Burke v. Crosson, 85 N.Y.2d 10, 623 N.Y.S.2d 524, 647 N.E.2d 736 [1995];  Marotta v. Blau, 241 A.D.2d 664, 659 N.Y.S.2d 586 [1997] ), was not adequately pleaded.

We have considered appellant's other contentions and find them unavailing.