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JOHN J. GEBBIA, ET AL., Plaintiffs-Appellants, v. THE TORONTO-DOMINION BANK, ET AL., Defendants-Respondents.

The retention agreements relied upon by plaintiffs, although ambiguous, may be reasonably construed to obligate defendants to pay the Gebbia sons and James Antosh their salaries and the management bonus pool payments for three years. Accordingly, dismissal, pursuant to CPLR 3211(a)(7), of plaintiffs' cause for breach of such an obligation was not warranted (see TSR Consulting Servs., Inc. v. Steinhouse, 267 A.D.2d 25).

Plaintiff's remaining claims were, however, properly dismissed. Their claims for breach of an oral employment agreement and fraud lack merit in light of the integration clauses in the written agreements (see Benjamin Goldstein Prod. v. Fish, 198 A.D.2d 137; Thayer v. Dial Indus. Sales, 85 F. Supp.2d 263, 272-273). In light of those integration clauses, plaintiffs can make no tenable claim that they reasonably relied upon the representations alleged in support of their estoppel cause of action (see id.). Plaintiffs' estoppel claim is additionally untenable in light of the written purchase and retention agreements governing its subject matter (see James v. W. New York Computing Servs., 273 A.D.2d 853, 855). Also properly dismissed were plaintiffs' claims for an accounting since there was no allegation of the sort of underlying relationship upon which the right to an accounting is conditioned (see Reichert v. N. MacFarland Bldrs., 85 A.D.2d 767), and to recover for intentional interference with prospective economic advantage since there was no sufficient allegation that a contract would have been entered into between plaintiff John J. Gebbia and another firm but for defendants' interference (see Brown v. Bethlehem Terrace Assocs., 136 A.D.2d 222).

Inasmuch as plaintiffs have stated a claim for breach of contract, and in light of their documented efforts to serve TD Bank, the minimal delay, and the timely notice to TD Bank of the complaint, plaintiffs' motion for an additional 18 days to serve TD Bank should have been granted (see Leader v. Maroney, Ponzini Spencer, 97 N.Y.2d 95). The additional time should run from service of a copy of this order, with notice of entry, upon plaintiffs.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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GEBBIA v. TORONTO-DOMINION BANK
(Jun 5, 2003)