Luke Industries, Inc. v. Prominent Apparel (America), Inc.

248 A.D.2d 141, 670 N.Y.S.2d 69, 1998 N.Y. App. Div. LEXIS 2072

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 1998
• Status: Published

Opinion

—Order, Supreme Court, New York County (Lewis Friedman, J.), entered November 6, 1996, which denied defendants-appellants’ motion to dismiss plaintiff’s cause, of action for breach of contract upon documentary evidence, or, in the alternative, for summary judgment dismissing that cause of action, unanimously affirmed, without costs.

Although it was inappropriate for the motion court to characterize defendants’ CPLR 3211 (c) request as an attempt “to subvert the requirement of CPLR 3212 (a) [that] an answer be served first”, rejection of the request was a proper exercise of discretion (see, Four Seasons Hotels v Vinnik, 127 AD2d 310, 320). Assuming in defendants’ favor that the oral modification on which plaintiff relies is unprovable because of the parol evidence rule, there would still be a question whether defendants breached the implied covenant of good faith and fair dealing (see, Dalton v Educational Testing Serv., 87 NY2d 384, 389) (expressed in the parties’ licensing agreement as the taking of “such action as may be necessary to comply with the terms hereof’). As the motion court noted, that is the essence of plaintiffs claim. Defendants’ motion sheds no light on why they discontinued the licensed line, or why their earnings on that line were so low as compared to plaintiffs earnings. Concur — Rosenberger, J. P., Ellerin, Wallach and Rubin, JJ.