New York Pepsi-Cola Distributors Ass'n v. Pepsico, Inc.

240 A.D.2d 315, 659 N.Y.S.2d 441, 1997 N.Y. App. Div. LEXIS 6724

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 24, 1997
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered July 2, 1996, dismissing the action for failure to state a cause of action, unanimously affirmed, with costs.

The IAS Court properly held that plaintiffs, independent wholesale distributors who purchase soft drinks for resale from an independent bottler not a party to this action, are not third-party beneficiaries of any contracts between the bottler and defendants, the bottler’s licensor, it being settled that a sublicensee is not a third-party beneficiary of a contract between a licensor and direct licensee (see, Artwear, Inc. v Hughes, 202 AD2d 76, 83-84), and since any benefits that plaintiffs derive from such contracts are incidental (see, Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 336). Nor does defendants’ alleged failure to prevent other distributors from transshipping licensed products into plaintiffs’ exclusive territories state a claim for breach of fiduciary duty in the absence of a contract between the parties (see, Mandelblatt v Devon Stores, 132 AD2d 162, 167-168), or allegations showing an " 'intimate relationship’ ” (Brasport, S. A. v Hoechst Celanese Corp., 747 F Supp 199, 202). The court also properly dismissed the causes of action for tortious interference with contract since no contracts were breached (see, Artwear, Inc. v Hughes, supra, at 85), and for tortious interference with prospective business relations absent allegations of culpable conduct (see, Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, 191). Leave to replead was properly denied in the absence of a "proposed new pleadingt ] supported by evidence as on a motion for summary judgment” (Abbott v Herzfeld & Rubin, 202 AD2d 351, 352, lv dismissed in part and denied in part 83 NY2d 995). Concur—Ellerin, J. P., Wallach, Nardelli, Rubin and Mazzarelli, JJ.