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

BENNARDI & ASSOCIATES, INC., et al., Appellants, v. RAMSONS ONE, INC., et al., Respondents.

Decided: June 24, 2004

Before:  SPAIN, J.P., CARPINELLO, MUGGLIN, ROSE and LAHTINEN, JJ. Roemer, Wallens & Minneaux L.L.P., Albany (Matthew J. Kelly of counsel), for appellants. Carter, Conboy, Case, Blackmore, Maloney & Laird P.C., Albany (Megan B. Van Aken of counsel), for respondent.

Appeal from an order of the Supreme Court (Teresi, J.), entered September 16, 2003 in Albany County, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint.

By contract dated August 1, 1998, defendants, the owners of the Clarion Inn and Suites at 611 Troy-Schenectady Road in the Town of Colonie, Albany County, agreed with plaintiffs to pay plaintiffs $4,500 monthly to manage this hotel property.   The contract provided that it could be terminated at any time for cause.   Also, the contract could be terminated without cause upon 30 days' notice by paying a one-time liquidated damages fee of $4,500.   By letter dated April 15, 2001, defendants terminated the contract stating, “Per my contract with you, upon service of a thirty days notice, our agreement ceases as of 15th May 2001.   Your fees will be calculated and paid for up to that date.”   Plaintiffs then commenced this action seeking damages for breach of contract, interference with business relationships, interference with employment relationships and defamation.   In their answer, defendants asserted various counterclaims.   Following joinder of issue, defendants moved for summary judgment dismissing plaintiffs' complaint and for summary judgment on their counterclaims.   Supreme Court dismissed plaintiffs' complaint, but denied summary judgment on the counterclaims.   Plaintiffs appeal, but address only the dismissal of their cause of action for breach of contract.   By failing to address the remainder of their claims, we deem these to have been abandoned (see Isabell v. U.W. Marx, Inc., 299 A.D.2d 701, 702, 751 N.Y.S.2d 324 [2002] ).

 In the complaint, plaintiffs simply allege that the termination of the contract without any basis was a breach.   As amplified by their bill of particulars, plaintiffs assert that the breach occurred because defendants failed to properly fund the hotel, misrepresented operations of the hotel and misappropriated funds of the hotel.   Our review of the record leads us to conclude that Supreme Court properly determined that defendants shifted the burden to plaintiffs requiring plaintiffs to lay bare their evidence to raise triable issues of fact concerning these allegations and that they failed to do so (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).   Rather, plaintiffs, for the first time, in opposition to the motion for summary judgment, claimed that they are owed 5 1/212 months of management fees which they earned prior to the termination of the contract.   Plaintiffs may not avoid summary dismissal of the complaint because of the existence of an arguably meritorious cause of action different from those pleaded (see Annutto v. Village of Herkimer, 56 Misc.2d 186, 288 N.Y.S.2d 79 [1968], rev. in part on other grounds 31 A.D.2d 733, 297 N.Y.S.2d 295 [1968], appeal dismissed 24 N.Y.2d 820, 300 N.Y.S.2d 596, 248 N.E.2d 449 [1969];  see also Central State Bank v. American Appraisal Co., 33 A.D.2d 1009, 307 N.Y.S.2d 708 [1970], affd. 28 N.Y.2d 578, 319 N.Y.S.2d 615, 268 N.E.2d 327 [1971] ).   Under the circumstances of this case, however, plaintiffs should be granted leave to apply to Supreme Court for leave to serve and file an amended complaint (see e.g. Raymond Babtkis Assoc. v. Tarazi Realty Corp., 34 A.D.2d 754, 310 N.Y.S.2d 343 [1970];  Bright v. O'Neill, 3 A.D.2d 728, 159 N.Y.S.2d 742 [1957] ).

ORDERED that the order is modified, on the facts, without costs, by allowing plaintiffs to apply to Supreme Court for leave to serve and file an amended complaint, and, as so modified, affirmed.



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