Opinion
12507 Index No. 651746/19 Case No. 2020-01705
12-01-2020
CURACAO OIL N.V., Plaintiff–Appellant, v. TRAFIGURA PTE. LTD., Defendant–Respondent.
Freehill Hogan & Mahar LLP, New York (Gina M. Venezia of counsel), for appellant. Stroock & Stroock & Lavan LLP, New York (Francis C. Healy of counsel), for respondent.
Freehill Hogan & Mahar LLP, New York (Gina M. Venezia of counsel), for appellant.
Stroock & Stroock & Lavan LLP, New York (Francis C. Healy of counsel), for respondent.
Gische, J.P., Webber, Oing, Mendez, JJ.
Order, Supreme Court, New York County (Joel M. Cohen, J.), entered February 3, 2020, which granted defendant's CPLR 3211(a)(1) and (7) motion to dismiss the complaint, unanimously affirmed, without costs.
The motion court properly dismissed the breach of contract claim based on the independent inspector's "final and binding" quality determination of the fuel oil purchased by plaintiff under the contract ( Yonkers Contr. Co. v. Port Auth. Trans–Hudson Corp. , 208 A.D.2d 63, 65–66, 621 N.Y.S.2d 642 [2d Dept. 1995], affd 87 N.Y.2d 927, 640 N.Y.S.2d 866, 663 N.E.2d 907 [1996] ). Although plaintiff asserts that this case is distinguishable from Sempra Energy Trading Corp. v. BP Prods. N. Am., Inc., 52 A.D.3d 350, 860 N.Y.S.2d 71 [1st Dept. 2008] ) relied on by the motion court, we see no reason to deviate from the contract interpretation principles applied in that case ( id. at 350, 860 N.Y.S.2d 71 ["The complaint was properly dismissed, where plaintiff's breach of contract claim was refuted by ... the pre-discharge inspection report showing that the delivered fuel oil was in compliance with contract specifications"] ). Here, although plaintiff maintains that the independent inspector's quality determination did not apply to characteristics not tested, the motion court properly determined that the contract did not provide for such a carveout. For the same reasons, the breach of warranty claim was properly dismissed, as the purported warranty on which plaintiff relies was expressly limited by the independent inspector's determination (see CBS Inc. v. Ziff–Davis Publ. Co. , 75 N.Y.2d 496, 503–504, 554 N.Y.S.2d 449, 553 N.E.2d 997 [1990] ; Simone v. Homecheck Real Estate Servs., Inc. , 42 A.D.3d 518, 521, 840 N.Y.S.2d 398 [2d Dept. 2007] ).