Opinion
13249 Index No. 653212/19 Case No. 2020-01404
03-04-2021
FEW SPIRITS, Plaintiff–Appellant, v. UB DISTRIBUTORS, LLC, Defendant–Respondent.
Garbarini & Scher, P.C., New York (William D. Buckley of counsel), and Howard & Howard PLLC, Royal Oak, MI (Michael O. Fawaz of the bar of the State of Illinois and State of Michigan, admitted pro hac vice, of counsel), for appellant. Lawson & Weitzen, LLP, New York (Joshua M.D. Segal of counsel), for respondent.
Garbarini & Scher, P.C., New York (William D. Buckley of counsel), and Howard & Howard PLLC, Royal Oak, MI (Michael O. Fawaz of the bar of the State of Illinois and State of Michigan, admitted pro hac vice, of counsel), for appellant.
Lawson & Weitzen, LLP, New York (Joshua M.D. Segal of counsel), for respondent.
Kern, J.P., Oing, Singh, Moulton, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered February 13, 2020, which, upon converting defendant's CPLR 3211(a)(1) and (7) motion to dismiss to a motion for summary judgment pursuant to CPLR 3211(c), granted defendant's motion and dismissed the complaint, unanimously modified, on the law, to declare in defendant's favor that the contract is not terminable at will, and as so modified, affirmed, without costs.
First, the motion court properly converted the motion to dismiss into a motion for summary judgment because plaintiff requested such treatment and the motion presented only issues of law and not issues of fact ( Four Seasons Hotels v. Vinnik, 127 A.D.2d 310, 320, 515 N.Y.S.2d 1 [1st Dept. 1987] ; see also Mihlovan v. Grozavu, 72 N.Y.2d 506, 508, 534 N.Y.S.2d 656, 531 N.E.2d 288 [1988] ). Additionally, the court correctly found that the contract was unambiguous and was the "complete and exclusive statement of the terms of [the parties'] understanding and agreement." Thus, the court properly excluded plaintiff's proffered parol evidence regarding the intent of the parties ( Matter of Primex Intl. Corp. v. Wal-Mart Stores, Inc., 89 N.Y.2d 594, 599, 657 N.Y.S.2d 385, 679 N.E.2d 624 [1997] ; MPEG LA, L.L.C. v. Toshiba Am. Info. Sys., Inc., 161 A.D.3d 426, 427, 77 N.Y.S.3d 16 [1st Dept. 2018] ).
Second, the contract was not a contract of indefinite duration or one in which the parties made no express provision of duration, but instead, was an agreement that was terminable upon the occurrence of events (see United Chem. & Exterminating Co., Inc. v. Security Exterminating Corp., 246 A.D. 258, 285 N.Y.S. 291 [1st Dept. 1936] ; see also Ehrenworth v. Stuhmer & Co., 229 N.Y. 210, 220, 128 N.E. 108 [1920] ; see generally Haines v. City of New York, 41 N.Y.2d 769, 772–773, 396 N.Y.S.2d 155, 364 N.E.2d 820 [1977] ; cf. Colony Liq. Distribs., Inc. v. Daniel Distillery., Inc., 22 A.D.2d 247, 254 N.Y.S.2d 547 [3d Dept. 1964]. ).
Third, because the contract imposed obligations on both parties, it was supported by mutual consideration ( Weiner v. McGraw–Hill, Inc., 57 N.Y.2d 458, 464, 457 N.Y.S.2d 193, 443 N.E.2d 441 [1982] ).
Finally, we modify solely to declare in favor of defendant (see New York City Sch. Constr. Auth. v. New S. Ins. Co., 173 A.D.3d 539, 540, 103 N.Y.S.3d 76 [1st Dept. 2019], lv denied 35 N.Y.3d 903, 2020 WL 2216174 [2020] ).