In an action by plaintiff carting company Liberty Ashes, Inc. ("plaintiff") against defendant health food store The Health Nuts, Inc. ("defendant") for breach of contract, defendant seeks summary judgment dismissal of plaintiff's complaint pursuant to Civil Practice Law and Rules (CPLR) §3212. Upon the Court's full consideration of all papers submitted, defendant's motion for summary judgment is granted.

On November 9, 2007, plaintiff and defendant signed contracts for plaintiff to provide commercial non-hazardous waste removal services for four (4) of defendant's locations: Health Nuts Inc., at 1208 Second Avenue, New York, NY; The Health Market, at 2141 Broadway, New York, NY; Step Down to Nature, Inc., at 835 Second Avenue, New York, NY; and The Natural Paradise, Inc., at 2611 Broadway, New York, NY. The parties signed contracts for each location, with the terms of the contracts being identical. Plaintiff and defendant agree that defendant cancelled the contracts three (3) days later, on November 12, 2007.

In the memorandum of law in support of the motion for summary judgment, defendant contends that while plaintiff named "The Health Nuts Inc." as defendant, such is the formal corporate name of only one of the entities. The other three (3) stores were formally incorporated as The Health Market, Inc., Step Down to Nature, Inc. and The Natural Paradise, Inc., all "doing business as" or "d/b/a" The Health Nuts. Defendant initially seeks dismissal on grounds of plaintiff's failure to name all corporate entities in the caption, and therefore having sued the "wrong party."

CPLR §2001 provides: [*2]

At any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action, the court may permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any applicable fees shall be paid.

Further, according to firmly established precedent:

It is elementary that mistakes or irregularities not affecting a substantial right of a party are not fatal. Mistakes relating to the name of a party surely fall within the category of those irregularities which are subject to correction by amendment, particularly when the other party is not prejudiced and should have been well aware from the outset that a misdescription was involved" (Covino v. Alside Supply Co., 42 AD2d 77, 80 [4th Dept 1973]; see also New York State Department of Audit and Control v. Crime Victims Compensation Board, 76 AD2d 410 [3rd Dept 1980]).

In view of the following: 1) there is no claim or indication of prejudice by plaintiff's failure to list the proper corporate names for three of the defendants in the caption; 2) "[t]he policy of permitting mistakes to be corrected at any stage of the action has always been liberal..." (Covino, 42 AD2d 77 at 81), and 3) the "misnomer could not possibly have misled the defendant concerning who it was that the plaintiff was...seeking to sue" (Suarez v. Shorehaven Homeowners Association, Inc., 202 AD2d 229, 231 [1st Dept 1994] quoting Creative Cabinet Corp. of America v. Future Visions Computer Store, 140 AD2d 483, 484-485 [2nd Dept 1988]), the Court rejects the defendant's argument that dismissal is warranted for plaintiff's failure to list the proper corporate names for all defendants in the caption. The court also notes that the same person, Vahik Babaian, signed each contract as president, and that consequently, there was no confusion as to the intended defendants. Further, since plaintiff would be permitted to seek correction or amendment of the caption at any point in the proceeding (Covino at 81) and there is precedent for the Court's sua sponte amendment of the caption (Suarez at 231),dismissal on grounds that plaintiff failed to use the proper corporate names for all defendants would be a draconian measure.

Defendant also seeks dismissal on grounds that the contracts are voidable because they contain blanks and crossed-out words. The pertinent part of Section VII ("Circumstances Where This Contract Will Be Voidable") of the contracts reads: "This contract will be voidable (1) if any blank on this contract is not properly completed or any portion of this contract is Crossed [sic] out..."

In Section II of the contract ("Terms of Service"), the language "Equipment Provided By Carting Company" is crossed out, and "will pickup -loose cardboard-" is handwritten underneath.

While the cross-out of what appears to be boilerplate contractual language might initially appear innocuous, and possibly even required to fit the parties' circumstances, "...a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield v. Philles Records, Inc., 98 NY2d 562, 569 [2002]). Here, where the contract clearly specifies that any crossed-out or portion of the contract invalidates the instrument, the intent of the parties is manifest. "The best evidence of what parties to a written agreement intend is what [*3]they say in their writing" (Greenfield, 98 NY2d at 569 quoting Slamow v. Del Col, 79 NY2d 1016 [1992]). Based on the "plain meaning" of the Section VII, the cross-out in Section II must be found to invalidate the contract.

Further, Section III of the contract ("Fee for Services") provides in pertinent part:

The Customer agrees to pay the Carting Company a flat fee. The total flat fee stated below has been calculated by multiplying the waste volume or waste weight (in cubic yards or pounds of waste per month) as follows:

SURVEYED VOLUME OR WEIGHT OF WASTE: The Carting Company represents and warrants: The Carting Company conducted a survey (in accordance with the applicable rules) of the waste generated by the Customer, offered the customer an opportunity to participate in that survey, and gave a copy of the written survey results to the Customer. The survey results reflect that the Customer generates _________ cubic yards of waste per month.

The language in that section further indicates that the total flat fee is $300, "(calculated by multiplying the surveyed volume by weight by the rate)..." As with the cross-out, pursuant to Section VII, the blank in Section III where the number of cubic yards of waste reflected by the survey ("waste volume") should have been entered voids the contract.

It must also be noted that according to the contract, the waste volume is a necessary factor to calculate the flat fee; therefore, such quantity is required to determine the price or cost for services. A history of case law is unequivocal that price is a material element of a contract (see Brands v Urban, 182 AD2d 287, 290 [1992]; Willmott v Giarraputo, 5 NY2d 250 [1959]; In re McVoy's Estate, 94 NYS2d 396 [Sup Ct, Queens County 1950, Swezey, J.]; Leonard C. Pratt Co. v Roseman, 259 AD 534 [1st Dept 1940]; Ansorge v Kane, 244 NY 395 [1927]), and that a contract is unenforceable where there is no meeting of the minds between the parties thereto regarding a material element thereof (Brands v Urban,182 AD2d 287 [1992], , supra , citing Willmott v Giarraputo, 5 NY2d 250, 253 [1959], supra ; Patrolmen's Benevolent Assn of City of New York v City of New York, 27 NY2d 410, 416 [1971]; Matter of Smith v Department of State of State of NY, 3 AD2d 954, 955 [1957]; Neiss v Franze, 101 Misc 2d 871[1979]). Without the waste volume being a known quantity, the method for figuring the monthly flat fee for the carting company's services is unknown, and possibly even arbitrary. As a natural extension of the progeny of cases cited herein, there can be no meeting of minds where the plain language of the contract specifies a method for determining a material element, and a factor required for such methodology is missing or unknown.

The contract also contains a "Customer Waiver of Survey" in Section VIII reading:

"I agree with the estimate of the amount of __x__ refuse __x__ recyclable materials (check one or both) generated by my business or by the business I represented [sic], and waive my right to have a waste stream survey conducted by the carting company or trade waste broker completing this form. This waiver does not prevent me from negotiating a monthly fee with the carting company or the broker, it only affirms the carting company or broker's estimate of the volume/weight of my business's refuse. I retain the right to request an actual weight of my business's refuse twice each year if I think the original estimate has become inaccurate."

The waiver clause must be deemed invalid. A plain reading makes clear that such waiver is based on the defendant's agreement with an estimate of waste volume; however, no such estimate is [*4]provided in the contract. The defendant cannot be construed to have waived a contractual requirement where the condition for the waiver, i.e., agreement with an estimate, is absent. The sentence in the clause allowing the negotiation of a monthly fee does not resuscitate the validity of the waiver since it, too, assumes the existence of an estimated waste volume ("This waiver does not prevent me from negotiating a monthly fee...it only affirms the carting company or broker's estimate of the volume/weight of my business's refuse" [emphasis added]).

Defendant cancelled the contract by a letter dated November 12, 2007, in which it informed plaintiff that it intended to retain its contract with the carting company already providing services. The rescinding of a contract is " the avoiding of a voidable contract'" (see Stowell Motor Car Co., Inc. v Hull, 117 Misc 789 [1921] citing 24 American and English Encyclopedia of Law, at 609). Based on the plain meaning of pertinent clauses in the contract, the existence of a cross-out and blanks make the contract voidable. Further, the lack of a waste volume quantity, a factor the contract requires to determine the fee for services, signifies a lack of meeting of the minds on a material element of the agreement. On these grounds, defendant has demonstrated its entitlement to rescind the contract.

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York University Medical Center, 64 NY2d 851 [1985]). The defendant has met its prima facie burden; consequently, plaintiff must demonstrate by evidence the existence of a factual issue requiring a trial of the action (Zuckerman v City of New York, 49 NY2d 557 [1980]).

In opposition to the defendant's motion, plaintiff contends that defendant's cancellation letter failed to raise any of the points argued in the motion, i.e., the voidableness of the contract. However, in determining whether there is a valid cause of action for breach of contract, the Court's consideration is not limited to the reasons given for the contract cancellation. Further, in defending the cross-out in the contract ("Equipment Provided By Carting Company"), plaintiff argues that it did not provide any equipment. The Court finds such argument to ignore clear case law requiring adherence to the plain meaning of a contract's terms (Greenfield v. Philles Records, Inc., 98 NY2d 562 [2002], supra ).

Regarding the waste volume, plaintiff contends that the parties agreed that there would be a flat fee instead of a charge based upon the amount of waste generated. However, the contract unambiguously states that the flat fee is derived by "multiplying the surveyed volume by weight by the rate," and as already noted herein, the waiver clause is invalid. Therefore, there could be no agreement to a flat fee without the waste volume. Quite notably, in its papers, plaintiff cites no legal authority to support its position. The court finds that plaintiff has failed to demonstrate by admissible evidence that a factual issue exists, and has offered no excuse for such failure (see Zuckerman, 49 NY2d 557, 562 [1980], supra ). Accordingly, the defendants' motion for summary judgment pursuant to CPLR § 3212 is granted.

The foregoing constitutes the decision and order of this Court.

Dated: May 7, 2010

__/s/__________________________

HON. CHEREÉ A. BUGGS

Judge of the Civil Court of the City of New York

County of Queens