Summary
finding that inquiry into ulterior motives behind termination of contract is unnecessary where the contract expressly permits that action
Summary of this case from Access. 1 Commc'n CORP.-NY v. ShelowitzOpinion
2784
January 14, 2003.
Order, Supreme Court, New York County (Karla Moskowitz, J.), entered August 24, 2001, which granted defendant's motion to dismiss the complaint in part, unanimously modified, on the law, to grant the motion in its entirety, and thus to dismiss plaintiff's remaining claim alleging fraudulent inducement, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.
Marc S. Dreier, for Plaintiff-Appellant-Respondent.
Joel M. Miller, for Defendant-Respondent-Appellant.
Nardelli, J.P., Tom, Mazzarelli, Andrias, Saxe, JJ.
Even if we were to accept, for the purpose of the motion to dismiss, that plaintiff's conflicting allegations may be interpreted as stating a claim against defendant for misrepresentation of a present fact collateral to the engagement letter (see Deerfield Communications Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954), plaintiff's claim of reasonable reliance on defendant's promise to proceed with the transaction is belied by the provision of the engagement letter permitting defendant to terminate without cause on 10-days' notice (see Prestige Foods, Inc. v. Whale Secs. Co., 243 A.D.2d 281, 282).
Plaintiff's breach of oral contract claim was correctly dismissed since the terms of the alleged oral "take down" agreement conflicted with the terms of the engagement letter (see Mitchill v. Lath, 247 N.Y. 377, 381;Namad v. Salomon Inc., 147 A.D.2d 385, 387, affd 74 N.Y.2d 751).
The breach of the covenant of good faith and fair dealing claim was properly dismissed since it was merely a substitute for a nonviable breach of contract claim (see Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 304). "A party has an absolute, unqualified right to terminate a contract on notice pursuant to an unconditional termination clause without court inquiry into whether the termination was activated by an ulterior motive" (Big Apple Car v. City of New York, 204 A.D.2d 109, 111; accord A.J. Temple Marble Tile, Inc. v. Long Is. R. R., 256 A.D.2d 526).
We have considered plaintiff's other arguments, including those pertaining to the dismissal of its promissory estoppel claim, and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.