Opinion
2021-07500 Index 100825/18
12-28-2021
State of New York ex rel. Cavallino Consulting, LLC, et al., Plaintiffs-Appellants, v. Stryker Corporation etc., et al., Defendants-Respondents. Appeal No. 14911 No. 2020-04561
Morrison Cohen LLP, New York (David A. Piedra of counsel), for appellants. Gibbons P.C., New York (Daniel S. Weinberger of counsel), for respondents.
Morrison Cohen LLP, New York (David A. Piedra of counsel), for appellants.
Gibbons P.C., New York (Daniel S. Weinberger of counsel), for respondents.
Before: Kern, J.P., Moulton, Mendez, Shulman, Higgitt, JJ.
Order, Supreme Court, New York County (James E. D'Auguste, J.), entered on or about May 1, 2020, which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.
The contract between these sophisticated parties is ambiguous as to whether "shipping costs" refers to the actual amount paid by defendants or the amount they charged based on the standard list prices for shipping by various carriers (see Ashwood Capital, Inc. v OTG Mgt., Inc., 99 A.D.3d 1, 7 [1st Dept 2012]).
As defendants were therefore acting according to a reasonable interpretation of their legal obligations, relator cannot show scienter for purpose of the False Claims Act (Finance Law § 188 et seq.) (United States ex rel. Purcell v MWI Corp., 807 F.3d 281, 287-288 [DC Cir 2015], cert denied ___ U.S. ___, 137 S.Ct. 625 [2017]).
As relator cannot state a cause of action under the False Claims Act, the court correctly dismissed the complaint without leave to replead.