Sto Corp. v. Henrietta Building Supplies, Inc.

202 A.D.2d 969, 609 N.Y.S.2d 746, 24 U.C.C. Rep. Serv. 2d (West) 57, 1994 N.Y. App. Div. LEXIS 3320

Opinion

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted partial summary judgment to plaintiff dismissing defendant’s first and third counterclaims. The undisputed proof establishes that the parties were unable to agree on terms governing the duration and termination of defendant’s distributorship. The hopes, beliefs and expectations of defendant’s President that the distributorship would continue for at least three years are no substitute for an express agreement to that effect with plaintiff. Absent an agreement with respect to the duration of their relationship, either party was at liberty to terminate the distributorship at any time upon reasonable notification to the other (see, UCC 2-309 [2], [3]; 93 NY Jur 2d, Sales, § 181).

Although the notice of appeal recites that defendant appeals from that part of the order granting summary judgment on plaintiffs cause of action seeking recovery of the value of plaintiffs inventory, defendant’s brief addresses only the court’s dismissal of defendant’s first and third counterclaims. By failing to challenge the propriety of the award of summary judgment to plaintiff on plaintiffs cause of action, defendant has abandoned that issue on appeal (see, Ciesinski v Town of Aurora, 202 AD2d 984 [decided herewith]; Lamphear v State of New York, 91 AD2d 791; Matter of Smith, 91 AD2d 789). (Appeal from Order of Supreme Court, Monroe County, Affronti, J. — Dismiss Counterclaims.) Present — Green, J. P., Pine, Callahan, Doerr and Boehm, JJ.