Summary
implying that, had the parties entered into a contract, the breach of fiduciary duty claim for transshipment of exclusively licensed goods by defendant may not have been dismissed, but comes short of holding that a contract alone would have been enough
Summary of this case from Laish, Ltd. v. Jafora-Tabori, Ltd.Opinion
June 24, 1997
Appeal from Supreme Court, New York County (Ira Gammerman, J.).
The IAS Court properly held that plaintiffs, independent wholesale distributors who purchase soft drinks for resale from an independent bottler not a party to this action, are not third-party beneficiaries of any contracts between the bottler and defendants, the bottler's licensor, it being settled that a sublicense is not a third-party beneficiary of a contract between a licensor and direct licensee ( see, Artwear, Inc. v. Hughes, 202 A.D.2d 76, 83-84), and since any benefits that plaintiffs derive from such contracts are incidental ( see, Burns Jackson Miller Summit Spitzer v. Lindner, 59 N.Y.2d 314, 336). Nor does defendants' alleged failure to prevent other distributors from transshipping licensed products into plaintiffs' exclusive territories state a claim for breach of fiduciary duty in the absence of a contract between the parties ( see, Mandelblatt v. Devon Stores, 132 A.D.2d 162, 167-168), or allegations showing an "`intimate relationship'" ( Brasport, S. A. v. Hoechst Celanese Corp., 747 F. Supp. 199, 202). The court also properly dismissed the causes of action for tortious interference with contract since no contracts were breached ( see, Artwear, Inc. v. Hughes, supra, at 85), and for tortious interference with prospective business relations absent allegations of culpable conduct ( see, Guard-Life Corp. v. Parker Hardware Mfg Corp., 50 N.Y.2d 183, 191). Leave to replead was properly denied in the absence of a "proposed new pleading supported by evidence as on a motion for summary judgment" ( Abbott v. Herzfeld Rubin, 202 A.D.2d 351, 352, lv dismissed in part and denied in part 83 N.Y.2d 996).
Concur — Ellerin, J.P., Wallach, Nardelli, Rubin and Mazzarelli, JJ.