Cushman & Wakefield, Inc. v. American Management Ass'n International, Inc.

8 A.D.3d 67, 777 N.Y.S.2d 911, 2004 N.Y. App. Div. LEXIS 7977

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 2004
• Status: Published

Opinion

Order, Supreme Court, New York County (Herman Cahn, J.), entered November 6, 2003, which, inter alia, granted defendant’s motion to dismiss the complaint, unanimously affirmed, with costs.

The intention of the parties was fully determinable from the language of the subject agreement and the amendment thereto, and the agreement was unambiguous (see Kass v Kass, 91 NY2d 554, 566 [1998]; Elletson v Bonded Insulation Co., 272 AD2d 825, 827 [2000]) in its failure to obligate plaintiff to use trade credits acquired under a different contract between different parties (see Schonfeld v Thompson, 243 AD2d 343 [1997]). Plaintiffs reliance upon the implied covenant of good faith and fair dealing arising out of the subject contract is unavailing inasmuch as the covenant, if construed as broadly as plaintiff proposes, would effectively annul other express terms of the contract and create contractual rights independent of the contract (see Fesseha v TD Waterhouse Inv. Servs., 305 AD2d 268 [2003]). Concur—Buckley, P.J., Lerner, Friedman, Marlow and Sweeny, JJ.