Summary
affirming grant of summary judgment based on defendant's failure to make required monthly payments
Summary of this case from Capital Constr. Mgmt. of New York, LLC v. ZagaOpinion
April 25, 1995
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
In light of the unambiguous contract between plaintiff and Infinity, and Infinity's failure to continue to make its monthly payments pursuant to said contract, summary judgment was warranted (see, Jafari v Wally Findlay Galleries, 741 F. Supp. 64, 67). Any attempt by defendant to alter the plain meaning of the contract by alleged oral modifications fails as a result of the contract's integration clause (see, Citibank v Plapinger, 66 N.Y.2d 90; Goodyear Publ. Co. v Mundell, 75 A.D.2d 556). Moreover, while defendant complains that it never received an "ongoing business," an "ongoing entity," or "good will" when it purchased plaintiff, the contract clearly provides that Infinity was only purchasing plaintiff's tangible business assets, which included plaintiff's accounts receivable, inventory and fixed assets.
We also note that insufficient evidence exists to support Infinity's claim that plaintiff breached the restrictive covenant of the contract. While there is evidence of a reprint of a certain medical book, the company responsible for the reprint is not affiliated with plaintiff, the reprint apparently occurred in Hong Kong, not the United States, and the reprint does not constitute "color separation" business.
We have considered defendant's other claims and find them to be meritless.
Concur — Sullivan, J.P., Rosenberger, Wallach, Kupferman and Tom, JJ.