Arden Communications Inc. v. Ab-bate

220 A.D.2d 237, 633 N.Y.S.2d 1

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 1995
• Status: Published

Opinion

—Order, Supreme Court, New York County (Beverly Cohen, J.), entered April 18, 1994, which, upon reargument, granted defendants’ motions for summary judgment, unanimously affirmed, with costs.

Plaintiff failed to show that the oral reports of expenses it allegedly gave to defendants, supposedly in accordance with an oral modification of the subject contracts requiring written reports and containing merger clauses, would be " 'unintelligible or at least extraordinary’ ” without reference to the alleged oral modification (Anostario v Vicinanzo, 59 NY2d 662, 664). Proof of the alleged oral modification being barred, plaintiff cannot show that it satisfied a condition precedent to defendants’ obligation to reimburse it for expenses, and therefore cannot enforce that obligation. Plaintiff’s claim of ratification has not been considered since it is raised for the first time on appeal and might have been countered factually had it been raised before the IAS Court (City of New York v Stack, 178 AD2d 355, Iv denied 80 NY2d 753). We have considered plaintiff’s remaining arguments and find them to be without merit. Concur—Sullivan, J. P., Rosenberger, Wallach, Ross and Tom, JJ.