Opinion
December 7, 1999
Order, Supreme Court, New York County (Charles Ramos, J.), entered May 12, 1998, which, inter alia, granted the motion of International Business Machines Corporation to dismiss the complaint as against it, unanimously affirmed, with costs.
Michael C. Devine, for plaintiff-appellant.
Jennifer B. Patterson, for defendant.
WILLIAMS, J.P., LERNER, SAXE, BUCKLEY, JJ.
Although defendant IBM moved pursuant to both CPLR 3211 (a)(7) and CPLR 3212(c) to dismiss the complaint against it, the complaint was ultimately dismissed as to IBM by the motion court pursuant to CPLR 3211(a)(7), for plaintiff's failure to state a cause of action for breach of contract. This disposition was correct since plaintiff failed in its pleading to identify the contractual provisions IBM breached (see, Bomser v. Moyle, 89 A.D.2d 202, 203) and, as plaintiff concedes, the license agreements between the parties do not require IBM to provide plaintiff with the upgrades it seeks free of charge. Because the subject agreements are unambiguous on their face, plaintiff is precluded form introducing evidence of custom and usage to contradict their provisions (see, Matter of Milonas v. Pub. Empl. Relations Bd., 225 A.D.2d 57, 65, lv denied 89 N.Y.2d 81 1).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.