Townsend Oil Corp. v. Marini

Appellate Division of the Supreme Court of New York

Townsend Oil Corp. v. Marini

77 A.D.3d 1416, 909 N.Y.S.2d 591

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 1, 2010

StatusPublished

This text of 77 A.D.3d 1416 (Townsend Oil Corp. v. Marini) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Townsend Oil Corp. v. Marini, 77 A.D.3d 1416, 909 N.Y.S.2d 591 (N.Y. Ct. App. 2010).

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Opinion

Appeal from a judgment of the Supreme Court, Genesee County (Robert C. Noonan, A.J.), entered October 2, 2009 in a breach of contract action. The judgment granted the cross motion of defendant Edward A. Duffy for summary judgment dismissing plaintiffs complaint against him.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for the alleged breach of a branded dealer supply agreement (agreement) by defendants. We conclude that Supreme Court properly granted the motion of Edward A. Duffy (defendant) seeking summary judgment dismissing the complaint against him, although our reasoning differs from that set forth in the court’s decision and order. The agreement provides, in relevant part, that “[plaintiff] shall sell and the [defendants] shall purchase during the term of this [a]greement and any extensions or renewals, the gasoline petroleum products and other products marketed and used by [plaintiff], all as shall be determined by [plaintiff].” Contrary to the determination of the court, the agreement is not a requirements agreement within [1417]*1417the meaning of UCC 2-306 inasmuch as it is not exclusive on its face (see Harvey v Fearless Farris Wholesale, Inc., 589 F2d 451, 461 [1979]; see generally Feld v Levy & Sons, 37 NY2d 466, 469470 [1975]). Nevertheless, we agree with the contention raised by defendant in Supreme Court, and as an alternative ground for affirmance on appeal (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546 [1983]), that the agreement is not enforceable because no quantity term appears therein (see UCC 2-201 [1]; International Commercial Resources, Ltd. v Jamaica Pub. Servs. Co., Ltd., 612 F Supp 1153, 1155 [1985], affd 805 F2d 390 [1986]). Present—Fahey, J.P., Carni, Lindley, Green and Gorski, JJ.

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Appeal from a judgment of the Supreme Court, Genesee County (Robert C. Noonan, A.J.), entered October 2, 2009 in a breach of contract action. The judgment granted the cross motion of defendant Edward A. Duffy for summary judgment dismissing plaintiffs complaint against him.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for the alleged breach of a branded dealer supply agreement (agreement) by defendants. We conclude that Supreme Court properly granted the motion of Edward A. Duffy (defendant) seeking summary judgment dismissing the complaint against him, although our reasoning differs from that set forth in the court’s decision and order. The agreement provides, in relevant part, that “[plaintiff] shall sell and the [defendants] shall purchase during the term of this [a]greement and any extensions or renewals, the gasoline petroleum products and other products marketed and used by [plaintiff], all as shall be determined by [plaintiff].” Contrary to the determination of the court, the agreement is not a requirements agreement within [1417]*1417the meaning of UCC 2-306 inasmuch as it is not exclusive on its face (see Harvey v Fearless Farris Wholesale, Inc., 589 F2d 451, 461 [1979]; see generally Feld v Levy & Sons, 37 NY2d 466, 469470 [1975]). Nevertheless, we agree with the contention raised by defendant in Supreme Court, and as an alternative ground for affirmance on appeal (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546 [1983]), that the agreement is not enforceable because no quantity term appears therein (see UCC 2-201 [1]; International Commercial Resources, Ltd. v Jamaica Pub. Servs. Co., Ltd., 612 F Supp 1153, 1155 [1985], affd 805 F2d 390 [1986]). Present—Fahey, J.P., Carni, Lindley, Green and Gorski, JJ.

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Bluebook (online)

77 A.D.3d 1416, 909 N.Y.S.2d 591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/townsend-oil-corp-v-marini-nyappdiv-2010.

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