Summary
dismissing reformation claim where plaintiff submitted only "bald conclusory statements concerning any fraud"
Summary of this case from Western Elec. Corp. v. New York City Transit Auth.Opinion
October 21, 1985
Appeal from the Supreme Court, Westchester County (Beisheim, J.).
Order affirmed, with costs.
Plaintiffs are participating pharmacies in defendant's prescription drug program; each has entered into a standard contract with defendant, whereby it agreed to provide prescription drugs to defendant's subscribers in exchange for defendant's reimbursing it for acquisition costs plus service charges in amounts specified therein. While not disputing that defendant made reimbursements in amounts specified in the contract, plaintiffs in the instant action sought, inter alia, reformation of the contract on the ground that the parties mistakenly failed to incorporate therein defendant's oral agreement to "reimburse pharmacists at the level of their usual and customary charges for filling prescriptions". Plaintiffs also alleged economic duress. Following joinder of issue, defendant moved for summary judgment; plaintiffs cross-moved for leave to join additional defendants. Special Term granted the motion and denied the cross motion. We affirm.
In order to defeat a motion for summary judgment, the party opposing the motion must come forward with evidence sufficient to raise a genuine issue of fact requiring a trial (see, Zuckerman v City of New York, 49 N.Y.2d 557; Great Neck Car Care Center v Artpat Auto Repair Corp., 107 A.D.2d 658, lv dismissed 65 N.Y.2d 897). Plaintiffs have failed to meet that burden.
It is settled, of course, that to obtain reformation of a contract based on mistake, a plaintiff must establish that it was executed under mutual mistake or a unilateral mistake induced by the defendant's fraudulent representation (see, Janowitz Bros. Venture v 25-30 120th St. Queens Corp., 75 A.D.2d 203). Here, however, plaintiffs submitted no evidence that defendant was mistaken about the contract (which contract, incidentally, stated that it constituted the entire agreement between the parties) or knew at the inception of the contract that plaintiffs had a mistaken belief about it. Nor did plaintiffs submit anything but bald conclusory statements concerning any fraud that allegedly induced their mistake, and it bears noting that mere promissory statements to perform in futuro do not form the basis of an action sounding in fraud (see, Lanzi v Brooks, 54 A.D.2d 1057, affd 43 N.Y.2d 778; 24 N.Y. Jur, Fraud and Deceit, § 50).
Moreover, with regard to economic duress, plaintiffs failed to demonstrate that they were compelled to sign the contract as a result of defendant's wrongful threats or acts which precluded exercise of their free will (see, 805 Third Ave. Co. v M.W. Realty Assoc., 58 N.Y.2d 447; Austin Instrument v Loral Corp., 29 N.Y.2d 124). Defendant merely offered a business arrangement, which plaintiffs were free to accept or reject, and it is to be noted that by the very terms of the contract either party had the option of canceling upon 30 days' written notice. In any event, even if economic duress had been established, it would only have allowed plaintiffs to void the contract, not to reform it (see, 805 Third Ave. Co. v M.W. Realty Assoc., supra, at p 451).
In short, in the absence of a triable issue of fact, Special Term correctly granted the summary judgment motion and denied the cross motion for leave to add additional defendants, the cross motion being rendered moot by the disposition of the principal motion. Lazer, J.P., O'Connor, Weinstein and Niehoff, JJ., concur.