HUDSON VALLEY WINDOW CLEANING INC v. ROTRON INCORPORATED (2023)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered July 27, 2022, which denied plaintiff's motion for summary judgment on the issue of liability on its claims and for summary judgment dismissing defendant's counterclaims, unanimously modified, on the law, to grant plaintiff's motion to dismiss defendant's unjust enrichment counterclaim, and otherwise affirmed, without costs.

The parties' contract for cleaning services permitted defendant, as the client, to terminate the contract for nonperformance on 60 days notice if, after providing 30 days notice to cure, plaintiff had not corrected the problem.  On July 20, 2021, defendant sent plaintiff a notice of intent to terminate and an email explaining that the contract would be terminated after 30 days if plaintiff did not improve services and comply with the Statement of Work incorporated into the agreement.  Defendant alleges that plaintiff did not improve and ceased working completely on August 20, 2021.  On August 26, 2021, defendant provided a notice of termination as of that date.

Plaintiff contends that the record is clear that defendant failed to comply with the notice to cure and termination provisions, so that it is entitled to summary judgment on its claim that defendant breached the contract (see East Empire Constr. Inc. v. Borough Constr. Group LLC, 200 A.D.3d 1, 5–7, 156 N.Y.S.3d 148 [1st Dept. 2021]).  However, whether defendant provided the requisite notice to cure and whether plaintiff complied are issues of fact.  The July 20 th notice of intent indicated the contract would be terminated in 30 days if plaintiff did not improve was not a “positive and unequivocal” termination of the contract, since it recognized that plaintiff could cure and the contract could continue (see Princes Point LLC v. Muss Dev. L.L.C., 30 N.Y.3d 127, 133, 65 N.Y.S.3d 89, 87 N.E.3d 121 [2017]).

Assuming, without deciding, that defendant is correct that the agreement is ambiguous as to whether the 60–day notice of termination may be commenced at the same time as the 30–day cure period, defendant's notice of termination on August 26 th provided less than the 60 days' notice required by the contract under either interpretation.  However, there are issues of fact as to whether plaintiff previously abandoned performance, obviating the need for a notice of termination (34–06 73, LLC v. Seneca Ins. Co., 39 N.Y.3d 44, 52, 178 N.Y.S.3d 1, 198 N.E.3d 1282 [2022];  Kleinberg Elec., Inc. v. E–J Elec. Installation Co., 111 A.D.3d 410, 411, 974 N.Y.S.2d 377 [1st Dept. 2013]), and as to whether plaintiff failed to cure, so that defendant then had a contractual right to terminate, but merely provided the erroneous date of termination (see generally G.B. Kent & Sons v. Helena Rubinstein, Inc., 47 N.Y.2d 561, 564–565, 419 N.Y.S.2d 465, 393 N.E.2d 460 [1979];  cf.  New Image Constr., Inc. v. TDR Enters. Inc., 74 A.D.3d 680, 681, 905 N.Y.S.2d 56 [1st Dept. 2010]).

In light of the above, plaintiff's motion to dismiss defendant's breach of contract counterclaim was properly denied, as defendant set forth facts sufficiently apprising plaintiff of its valid breach of contract claim (Foley v. D'Agostino, 21 A.D.2d 60, 63, 248 N.Y.S.2d 121 [1st Dept. 1964]).  However, plaintiff's motion to dismiss defendant's counterclaim for unjust enrichment should have been granted, as the services were governed by a contract (Corsello v. Verizon N.Y., Inc., 18 N.Y.3d 777, 790, 944 N.Y.S.2d 732, 967 N.E.2d 1177 [2012]).

We have considered plaintiff's remaining arguments and find them unavailing.