P. H. Audio Visual Corp. v. Mc-Graw-Hill Book Co.

134 A.D.2d 750

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1987
• Status: Published

Opinion

Casey, J.

Appeal from an order of the Supreme Court (Connor, J.), entered August 22, 1986 in Ulster County, which, inter alia, granted defendant’s motion for summary judgment dismissing the complaint.

Plaintiff seeks to recover damages for breach of contract, alleging that defendant wrongfully refused to execute a new three-year dealership agreement with plaintiff pursuant to the terms of a renewal clause contained in the parties’ agreement dated January 1, 1978. Upon the parties’ motions for summary judgment, Supreme Court found, on the basis of undisputed facts established by the parties’ papers, that plaintiff had failed to meet certain sales goals which were a condition precedent to plaintiff’s right to renew under the contract. Defendant’s motion for summary judgment dismissing the complaint was therefore granted. We affirm.

On appeal, plaintiff concedes that it did not meet the sales goals required by the contract, but claims that defendant waived this condition precedent when it advised plaintiff several months after the January 1, 1978 contract had been executed that, while it would honor all existing dealership contracts, no new dealership contracts would be issued after December 31, 1980. We agree with defendant that since its conduct did not prevent or hinder plaintiff from meeting the sales goals, plaintiff’s failure to fulfill the condition cannot be excused (see, Kotcher v Edelblute, 250 NY 178).

Order affirmed, with costs. Kane, J. P., Casey, Weiss, Mikoll and Harvey, JJ., concur.