Opinion
766
April 10, 2003.
Order, Supreme Court, New York County (Charles Ramos, J.), entered February 5, 2002, which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiffs' cross motion for summary judgment, unanimously affirmed, without costs.
Christine E. Morrison, for plaintiffs-appellants.
H. Joseph Escher III, for defendant-respondent.
Joel M. Ressler, for Amici Curiae.
Before: Buckley, P.J., Nardelli, Andrias, Friedman, Gonzalez, JJ.
The motion court found that defendant's posting of year-round signs stating "NASCAR Winston Cup Series" at racetracks where Winston Cup races take place annually between mid-February and mid-November did not violate § III(c)(3)(E) of the parties' Master Settlement Agreement (MSA), which permits such signs to be placed "no more than 90 days before the start of the initial sponsored event" and requires their removal "within 10 days after the end of the last sponsored event." We agree.
While the above-quoted language is not free from ambiguity (see Chimart Assocs. v. Paul, 66 N.Y.2d 570, 573), its interpretation was nonetheless proper in the context of the parties' summary judgment motions since the court's construction did not turn on extrinsic evidence presenting credibility issues or giving rise to competing inferences (see Amusement Bus. Underwriters v. Am. Intl. Group, Inc., 66 N.Y.2d 878, 880).
The MSA's definition of "Brand Name Sponsorship" shows that the word "event" means a race in a series such as NASCAR, not a qualifying or practice race at a particular racetrack. In addition, as the motion court noted, the parties agree that "initial sponsored event" in MSA § III(c)(2)(A) refers to the first race of a series. The phrase should presumptively be given the same meaning in MSA § III(c)(3)(E) (see Finest Invs. v. Sec. Trust of Rochester, 96 A.D.2d 227, 230, affd 61 N.Y.2d 897; T.R. McClure Co., Inc. Liquidating Trust v. TMG Acquisition Co., 1999 US Dist LEXIS 13676, *12 [ED Pa, Sept. 7, 1999] [applying New York law]), and we do not find that the contexts of sections III(c)(2)(A) and III(c)(3)(E) so differ as to warrant different interpretations of the phrase (see White v. Knickerbocker Ice Co., 254 N.Y. 152, 159).
Contrary to the arguments of plaintiffs and amici, interpreting "initial sponsored event" to mean the first race in the NASCAR Winston Cup Series subverts neither the ban on outdoor advertising in MSA § III(d) nor the MSA's objective of reducing smoking by persons under the age of 18. While Section III(d) prohibits outdoor advertising of tobacco products, the signs at issue do not advertise tobacco products.
Motion seeking leave to file amicus curiae brief granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.