Ellenville Vending Co. v. S & G Distribution North

Appellate Division of the Supreme Court of New York

Ellenville Vending Co. v. S & G Distribution North

208 A.D.2d 1151, 617 N.Y.S.2d 949, 1994 N.Y. App. Div. LEXIS 10546

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 27, 1994

StatusPublished

This text of 208 A.D.2d 1151 (Ellenville Vending Co. v. S & G Distribution North) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ellenville Vending Co. v. S & G Distribution North, 208 A.D.2d 1151, 617 N.Y.S.2d 949, 1994 N.Y. App. Div. LEXIS 10546 (N.Y. Ct. App. 1994).

Pincite

Opinion

Cardona, P. J.

Appeal from an order of the Supreme Court (Torraca, J.), entered January 24, 1994 in Ulster County, which, inter alia, partially granted plaintiff’s motion for summary judgment.

On or about May 15, 1992 the parties entered into a written agreement giving plaintiff exclusive vending and food service rights at defendant’s business facilities located in the Town of Montgomery, Orange County. Defendant concedes that it orally terminated the contract prior to July 15, 1992, the date specified as the "[bjeginning date”. Supreme Court granted partial summary judgment in favor of plaintiff in this breach of contract action deeming four facts established for all purposes in the action. The court found (1) the letter agreement to be a binding contract, (2) the term was to be a minimum of 90 days to commence July 15, 1992, (3) the agreement was terminable at will by either party upon 30 days’ written notice at any time given after the 90-day minimum term, and (4) defendant failed to perform the conditions required on its part and therefore breached the contract. The motion was denied in all other respects, i.e., plaintiff’s request for an inquest to determine damages was not granted.

In this appeal, defendant contends that the subject contract is one for exclusive services without provision for termination other than for cause and as such is either unenforceable, terminable at will or has been terminated. Notwithstanding this argument, it is clear that the contract specifically provided that it could not be terminated for at least 90 days following the commencement date, July 15, 1992. Defendant concedes that it terminated "prior to the commencement date”. In the face of this anticipatory breach, no question of fact was presented and Supreme Court correctly held the contract had been breached by defendant. Defendant’s argument that the absence of a specific duration rendered the contract terminable at will by either party (see, Greenwich Vil. Beverage v Food Merchandisers, 8 AD2d 719; see also, 22 NY Jur 2d, Contracts, § 424, at 344) is inapposite. Moreover, we do not find it appropriate, in the presence of defendant’s anticipatory breach, to reach the application of the rule set forth in Haines v City of New York (41 NY2d 769), which [1152]*1152enables a court in the absence of the clearly expressed duration of a contract to "supply the missing term if a duration may be fairly and reasonably fixed by the surrounding circumstances and the parties’ intent” (supra, at 772).

Mikoll, Crew III and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, with costs.

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Cardona, P. J.

Appeal from an order of the Supreme Court (Torraca, J.), entered January 24, 1994 in Ulster County, which, inter alia, partially granted plaintiff’s motion for summary judgment.

On or about May 15, 1992 the parties entered into a written agreement giving plaintiff exclusive vending and food service rights at defendant’s business facilities located in the Town of Montgomery, Orange County. Defendant concedes that it orally terminated the contract prior to July 15, 1992, the date specified as the "[bjeginning date”. Supreme Court granted partial summary judgment in favor of plaintiff in this breach of contract action deeming four facts established for all purposes in the action. The court found (1) the letter agreement to be a binding contract, (2) the term was to be a minimum of 90 days to commence July 15, 1992, (3) the agreement was terminable at will by either party upon 30 days’ written notice at any time given after the 90-day minimum term, and (4) defendant failed to perform the conditions required on its part and therefore breached the contract. The motion was denied in all other respects, i.e., plaintiff’s request for an inquest to determine damages was not granted.

In this appeal, defendant contends that the subject contract is one for exclusive services without provision for termination other than for cause and as such is either unenforceable, terminable at will or has been terminated. Notwithstanding this argument, it is clear that the contract specifically provided that it could not be terminated for at least 90 days following the commencement date, July 15, 1992. Defendant concedes that it terminated "prior to the commencement date”. In the face of this anticipatory breach, no question of fact was presented and Supreme Court correctly held the contract had been breached by defendant. Defendant’s argument that the absence of a specific duration rendered the contract terminable at will by either party (see, Greenwich Vil. Beverage v Food Merchandisers, 8 AD2d 719; see also, 22 NY Jur 2d, Contracts, § 424, at 344) is inapposite. Moreover, we do not find it appropriate, in the presence of defendant’s anticipatory breach, to reach the application of the rule set forth in Haines v City of New York (41 NY2d 769), which [1152]*1152enables a court in the absence of the clearly expressed duration of a contract to "supply the missing term if a duration may be fairly and reasonably fixed by the surrounding circumstances and the parties’ intent” (supra, at 772).

Mikoll, Crew III and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, with costs.

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Bluebook (online)

208 A.D.2d 1151, 617 N.Y.S.2d 949, 1994 N.Y. App. Div. LEXIS 10546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellenville-vending-co-v-s-g-distribution-north-nyappdiv-1994.

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