Opinion
March 11, 1999
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
Mindful of the demanding standard for setting aside of a jury verdict ( Elkins v. Ferencz, 253 A.D.2d 601, 604), and that questions of contractual intent are largely for resolution by the trier of fact ( Lehrer McGovern Bovis v. New York Yankees, 207 A.D.2d 256, 259), it is nonetheless clear that there was no breach of contract. Although the parties' agreement was, in general, sufficiently definite ( see, Cobble Hill Nursing Home v. Henry Warren Corp., 74 N.Y.2d 475, 482, cert denied 498 U.S. 816), and defendants were bound in good faith to help satisfy the contractual condition of obtaining a willing lender for plaintiff's loan program and not to frustrate its basic purpose ( see, Metropolitan Life Ins. Co. v. RJR Nabisco, 716 F. Supp. 1504, 1517; Trade Indus. Corp. v. Euro Broker's Inv. Corp., 222 A.D.2d 364, 368), the scope of this implied obligation was narrower than plaintiff contended. As the trial court correctly observed, defendants possessed a right of first refusal by which they retained the discretion to chose not to pursue any particular transaction proposed by plaintiff. It is therefore unnecessary to determine whether defendants' conduct evinced the requisite clear intention not to perform so as to amount to a repudiation.
The letter upon which plaintiff predicates its claim for defamation contained false statements, inasmuch as it inaccurately conveyed the impression that the defendant subsidiaries had not authorized plaintiff to represent that they were interested in its loan financing program. The defamatory publication was based upon foreseeable consequences borne of the initial publication, which was copied to a nonparty bank, and not upon any nonactionable voluntary republication by plaintiff ( cf., Wieder v. Chemical Bank, 202 A.D.2d 168, lv denied 83 N.Y.2d 759; Weintraub v. Phillips, Nizer, Benjamin, Krim Ballon, 172 A.D.2d 254). Damage to business reputation is presumed ( Langenbacher Co. v. Tolksdorf, 199 A.D.2d 64), and the compensatory award was not impermissibly speculative.
The punitive damage award was properly set aside for failure to show common-law malice ( see, Prozeralik v. Capital Cities Communications, 82 N.Y.2d 466, 479-480).
Concur — Rosenberger, J. P., Nardelli, Wallach and Rubin, JJ.