MARK BRUCE INTERNATIONAL INC v. BLANK ROME LLP

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Supreme Court, Appellate Division, First Department, New York.

MARK BRUCE INTERNATIONAL, INC., Plaintiff-Appellant, v. BLANK ROME, LLP, Defendant-Respondent.

Decided: March 24, 2009

FRIEDMAN, J.P., SWEENY, RENWICK, FREEDMAN, JJ. Gibbons, P.C., New York (Jeffrey A. Mitchell of counsel), for appellant. Blank Rome, LLP, New York (Harris N. Cogan of counsel), for respondent.

Order, Supreme Court, New York County (Herman Cahn, J.), entered May 30, 2008, which, in an action for breach of contract and unjust enrichment, granted defendant's cross motion for summary judgment dismissing the complaint and denied plaintiff's motion for summary judgment, unanimously affirmed, without costs.

The exchange of e-mails, which did not set forth the fee for plaintiff's services or an objective standard to determine it, was too indefinite to be enforceable (see generally Cobble Hill Nursing Home v. Henry & Warren Corp., 74 N.Y.2d 475, 482-484, 548 N.Y.S.2d 920, 548 N.E.2d 203 [1989], cert. denied 498 U.S. 816, 111 S.Ct. 58, 112 L.Ed.2d 33 [1990] ).   The standard of reasonableness, left for future determination by the parties themselves, rather than by a third party, was not made objective by the implied duty to determine the amount of the fee in good faith.   Furthermore, the unjust enrichment claim was properly dismissed as it is duplicative of the breach of contract claim (see Andrews v. Cerberus Partners, 271 A.D.2d 348, 707 N.Y.S.2d 85 [2000] ).