Summary
reversing denial of summary judgment on counterclaim for breach of contract
Summary of this case from Computech International, Inc. v. Compaq Computer Corp.Opinion
July 5, 1988
Appeal from the Supreme Court, Nassau County (Becker, J.).
Ordered that so much of the plaintiffs' cross appeal as is from that portion of the order which awarded the defendant partial summary judgment on his first counterclaim is dismissed; and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof which denied that branch of the cross motion which was for summary judgment on the defendant's eighth counterclaim and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as cross-appealed from and reviewed, and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the defendant is awarded one bill of costs.
The cross appeal from so much of the intermediate order as awarded the defendant summary judgment on his first counterclaim is dismissed, because the right of direct appeal therefrom terminated with the entry of judgment on that counterclaim (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on that portion of the cross appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
The Supreme Court, Nassau County, properly dismissed the plaintiffs' claims predicated upon the theory of fraudulent inducement and awarded judgment in favor of the defendant on his first counterclaim. Assuming, arguendo, that the defendant made the alleged representations concerning potential sales, any purported reliance thereon by the plaintiffs was not reasonably justified under the circumstances of this case (see, New York State Urban Dev. Corp. v. Garvey Brownstone Houses, 98 A.D.2d 767). Moreover, the alleged representations constituted mere "expressions of future expectations rather than statements of existing fact" (Country-Wide Leasing Corp. v. Subaru of Am., 133 A.D.2d 735, 736, lv denied 70 N.Y.2d 615); hence, they do not provide a sufficient basis for the plaintiffs' claims of fraud (see, Channel Master Corp. v. Aluminum Ltd. Sales, 4 N.Y.2d 403).
However, the court erred in denying that branch of the defendant's cross motion which was for summary judgment on his eighth counterclaim to recover payment in accordance with the terms of the noncompetition clause set forth in the parties' employment agreement. The record amply demonstrates that the defendant fully complied with the terms of this clause, and the plaintiffs failed to set forth any evidence sufficient to raise a triable issue of fact with respect to this claim. The defendant is therefore entitled to payment pursuant to that clause.
We have considered the defendant's remaining contentions and find them to be without merit. Thompson, J.P., Spatt, Sullivan and Harwood, JJ., concur.