Gordon & Breach Science Publishers, Inc. v. New York Systems Exchange, Inc.

Appellate Division of the Supreme Court of New York

Gordon & Breach Science Publishers, Inc. v. New York Systems Exchange, Inc.

267 A.D.2d 52, 699 N.Y.S.2d 673, 1999 N.Y. App. Div. LEXIS 12677

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

DecidedDecember 7, 1999

StatusPublished

Cited by5 cases

This text of 267 A.D.2d 52 (Gordon & Breach Science Publishers, Inc. v. New York Systems Exchange, Inc.) 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

Gordon & Breach Science Publishers, Inc. v. New York Systems Exchange, Inc., 267 A.D.2d 52, 699 N.Y.S.2d 673, 1999 N.Y. App. Div. LEXIS 12677 (N.Y. Ct. App. 1999).

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Opinion

—Order, Supreme Court, New York County (Charles Ramos, J.), entered May 12, 1998, which, inter alia, granted the motion of International Business Machines Corporation (IBM) to dismiss the complaint as against it, unanimously affirmed, with costs.

Although defendant IBM moved pursuant to both CPLR 3211 (a) (7) and 3212 (c) to dismiss the complaint against it, the complaint was ultimately dismissed as to IBM by the motion court pursuant to CPLR 3211 (a) (7), for plaintiffs failure to state a cause of action for breach of contract. This disposition was correct since plaintiff failed in its pleading to identify the contractual provisions IBM breached (see, Bomser v Moyle, 89 AD2d 202, 203) and, as plaintiff concedes, the license agreements between the parties do not require IBM to provide plaintiff with the upgrades it seeks free of charge. Because the subject agreements are unambiguous on their face, plaintiff is precluded from introducing evidence of custom and usage to contradict their provisions (see, Matter of Milonas v Public Empl. Relations Bd., 225 AD2d 57, 65, lv denied 89 NY2d 811). Concur — Williams, J. P., Lerner, Saxe and Buckley, JJ.

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—Order, Supreme Court, New York County (Charles Ramos, J.), entered May 12, 1998, which, inter alia, granted the motion of International Business Machines Corporation (IBM) to dismiss the complaint as against it, unanimously affirmed, with costs.

Although defendant IBM moved pursuant to both CPLR 3211 (a) (7) and 3212 (c) to dismiss the complaint against it, the complaint was ultimately dismissed as to IBM by the motion court pursuant to CPLR 3211 (a) (7), for plaintiffs failure to state a cause of action for breach of contract. This disposition was correct since plaintiff failed in its pleading to identify the contractual provisions IBM breached (see, Bomser v Moyle, 89 AD2d 202, 203) and, as plaintiff concedes, the license agreements between the parties do not require IBM to provide plaintiff with the upgrades it seeks free of charge. Because the subject agreements are unambiguous on their face, plaintiff is precluded from introducing evidence of custom and usage to contradict their provisions (see, Matter of Milonas v Public Empl. Relations Bd., 225 AD2d 57, 65, lv denied 89 NY2d 811). Concur — Williams, J. P., Lerner, Saxe and Buckley, JJ.

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267 A.D.2d 52, 699 N.Y.S.2d 673, 1999 N.Y. App. Div. LEXIS 12677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-breach-science-publishers-inc-v-new-york-systems-exchange-inc-nyappdiv-1999.

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