Opinion
August 1, 1994
Appeal from the Supreme Court, Suffolk County (Cannavo, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
"Under New York law, every contract contains an implied covenant of good faith and fair dealing" (Carvel Corp. v Diversified Mgt. Group, 930 F.2d 228, 230; Gelder Med. Group v Webber, 41 N.Y.2d 680, 684; Van Valkenburgh Nooger Neville v Hayden Publ. Co., 30 N.Y.2d 34, 45, cert denied 409 U.S. 875; see also, Restatement [Second] of Contracts § 205). This covenant includes "an implied undertaking on the part of each party that he will not intentionally and purposely do anything to prevent the other party from carrying out the agreement on his part" (Grad v. Roberts, 14 N.Y.2d 70, 75). The plaintiff claims that the defendant unjustifiably reduced delivery of its products to the plaintiff and otherwise frustrated the written distribution agreement between the parties. The plaintiff also seeks specific performance directing the defendant to purchase the remaining inventory following termination of the agreement. We agree with the Supreme Court that the factual record is not sufficiently developed to support an award of summary judgment. Moreover, a motion for summary judgment must be denied where, as here, the facts upon which the motion is predicated are exclusively within the knowledge of the moving party (see, Lewis v. Agency Rent-A-Car, 168 A.D.2d 435; Rowden v. National Car Rental, 36 A.D.2d 762). Sullivan, J.P., Lawrence, Pizzuto and Friedmann, JJ., concur.