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

Appellate Division of the Supreme Court of the State of New York·Decided December 7, 1999·Published·Cited by 5 cases

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.

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).

Pincite

267 A.D.2d 52 (Gordon & Breach Science Publishers, Inc. v. New York Systems Exchange, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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