From Casetext: Smarter Legal Research

Sun Refining and Marketing Co. v. McInerney

Appellate Division of the Supreme Court of New York, Second Department
Apr 4, 1988
139 A.D.2d 505 (N.Y. App. Div. 1988)

Opinion

April 4, 1988

Appeal from the Supreme Court, Suffolk County (McCarthy, J.).


Ordered that the appeal from the order dated August 14, 1986, is dismissed, without costs or disbursements, as that order was superseded by the order dated March 31, 1987, made upon reargument; and it is further,

Ordered that the order dated March 31, 1987, is modified, on the law, by deleting the provision thereof which denied that branch of the plaintiff's motion which was for summary judgment upon the two counterclaims in the defendants' amended answer, and substituting therefor a provision granting that branch of the plaintiff's motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

We find that the court improperly denied that branch of the plaintiff's motion which was for summary judgment upon the two counterclaims in the defendants' amended answer. In the first counterclaim, the defendants sought rescission of the franchise agreement on the ground that the terms of the agreement were "harsh, unjust and inequitable" and that continued enforcement would result in "severe financial losses". However, such allegations do not excuse performance of a contract, where, as here, performance was at all times possible, albeit unprofitable (see, 407 E. 61st Garage v. Savoy Fifth Ave. Corp., 23 N.Y.2d 275, 281-282). "[W]here impossibility or difficulty of performance is occasioned only by financial difficulty or economic hardship, even to the extent of insolvency or bankruptcy, performance of a contract is not excused" (407 E. 61st Garage v. Savoy Fifth Ave. Corp., supra, at 281). Accordingly, the first counterclaim must be dismissed. The second counterclaim, sounding in intentional interference with contractual relations, is likewise insufficient inasmuch as there is no evidence that the plaintiff intended to harm the defendants without economic or other lawful excuse or justification (see, Alvord Swift v. Muller Constr. Co., 46 N.Y.2d 276, 281-282).

We note, however, that summary judgment was properly denied with respect to the third through sixth causes of actions in the complaint since there are issues of fact which must be resolved following a trial. We have examined the remaining claims raised on appeal and find them to be without merit. Kunzeman, J.P., Eiber, Spatt and Sullivan, JJ., concur.


Summaries of

Sun Refining and Marketing Co. v. McInerney

Appellate Division of the Supreme Court of New York, Second Department
Apr 4, 1988
139 A.D.2d 505 (N.Y. App. Div. 1988)
Case details for

Sun Refining and Marketing Co. v. McInerney

Case Details

Full title:SUN REFINING AND MARKETING COMPANY, Appellant, v. JAMES J. McINERNEY et…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 4, 1988

Citations

139 A.D.2d 505 (N.Y. App. Div. 1988)

Citing Cases

Sun Ref. Mktg. Co. v. McInerney

Decided November 22, 1988 Appeal from (2d dept: 139 A.D.2d 505) FINALITY OF JUDGMENTS AND…

Sumarni, Inc. v. Levicon Dev. Associates

However, the plaintiff did not agree to these modifications. "`[W]here impossibility or difficulty of…