Interweb, Inc. v iPayment, Inc.

2004 NYSlipOp 07927

November 4, 2004

Appellate Division, First Department

Interweb, Inc., Appellant, v iPayment, Inc., Respondent.

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Order, Supreme Court, New York County (Herman Cahn, J.), entered March 5, 2004, granting defendant's motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.

The agreement between the parties solely concerned the limited service of processing plaintiff's customers' credit card transactions and failed to contain a term certain for its duration. Thus, the agreement was terminable at will (Beslow v Novell, Inc., 242 AD2d 501 [1997]) and not subject to the implied duty of good faith and fair dealing (Lipsky v Guardian Life Ins. Co., 268 AD2d 310, 311 [2000], citing Murphy v American Home Prods. Corp., 58 NY2d 293 [1983]).

Plaintiff's cause of action for tortious interference with prospective economic advantage was also properly dismissed. Assuming, arguendo, that defendant owed plaintiff a duty not to interfere with the relationship with nonparty Humboldt Bank, plaintiff failed to allege the requisite unlawful means or malicious intent to sustain such a claim (Thur v IPCO Corp., 173 AD2d 344, 345 [1991], lv dismissed 78 NY2d 1007 [1991]). Concur—Tom, J.P., Saxe, Lerner, Marlow and Sweeny, JJ.