Opinion
3857.
Decided June 10, 2004.
Order, Supreme Court, New York County (Herman Cahn, J.), entered November 6, 2003, which, inter alia, granted defendant's motion to dismiss the complaint, unanimously affirmed, with costs.
Paul, Hastings, Janofsky Walker LLP, New York (Gerald J. Fields of counsel), for appellant.
Debevoise Plimpton LLP, New York (Michael E. Wiles of counsel), for respondent.
Before: Buckley, P.J., Lerner, Friedman, Marlow, Sweeny, JJ.
The intention of the parties was fully determinable from the language of the subject agreement and the amendment thereto, and the agreement was unambiguous ( see Kass v. Kass, 91 N.Y.2d 554, 566; Elletson v. Bonded Insulation Co., 272 A.D.2d 825, 827) in its failure to obligate plaintiff to use trade credits acquired under a different contract between different parties ( see Schonfeld v. Thompson, 243 A.D.2d 343). Plaintiff's reliance upon the implied covenant of good faith and fair dealing arising out of the subject contract is unavailing inasmuch as the covenant, if construed as broadly as plaintiff proposes, would effectively annul other express terms of the contract and create contractual rights independent of the contract ( see Fesseha v. TD Waterhouse Inv. Servs., Inc., 305 A.D.2d 268).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.