| Baldo v Patton |
| 2009 NY Slip Op 06200 [65 AD3d 765] |
| August 13, 2009 |
| Appellate Division, Third Department |
| Joshua Baldo, Doing Business as Orbital Imaging, Appellant, vMartin Patton, Also Known as Marty Patton, Individually and Doing Business as CooperstownAll Sports Village, Cooperstown All Star Village, LLC and Cooperstown Home RunManagement, LLC, et al., Respondents. |
—[*1] Gozigian, Washburn & Clinton, Cooperstown (Edward Gozigian of counsel), forrespondents.
Kane, J. Appeal from an order of the Supreme Court (Coccoma, J.), entered January 8, 2008in Otsego County, which granted defendants' motion for summary judgment dismissing thecomplaint.
Defendant Cooperstown All Star Village, LLC operates a youth baseball camp. DefendantCooperstown Home Run Management, LLC has a contract to manage the daily operations of thebaseball camp. Defendant Martin Patton is the sole member and employee of CooperstownHome Run Management, LLC and a member of Cooperstown All Star Village, LLC. In 2004,plaintiff entered into a five-year contract for exclusive rights to provide photographic services todefendants' customers. The contract provided that "[i]f for any reason termination is requiredwritten conformation [sic] must be presented to either party 90 days prior totermination." In 2007, Patton sent plaintiff a letter on behalf of Cooperstown All Star Village,[*2]LLC in his capacity as manager and member of CooperstownHome Run Management, LLC. The letter informed plaintiff that defendants were terminating the2004 agreement in 90 days.
Plaintiff commenced this action seeking a declaration that defendants committed ananticipatory breach of the contract by terminating the agreement, specific performance of theagreement, a permanent injunction against interference with plaintiff performing under theagreement, money damages and punitive damages. Supreme Court granted defendants' motionfor summary judgment dismissing the complaint. Plaintiff appeals.
Supreme Court properly held that the agreement was not ambiguous and permitteddefendants to terminate the agreement with 90 days notice. When parties set forth an agreementin a clear and unambiguous document, that writing should be read as a whole and enforcedaccording to its terms (see South Rd.Assoc., LLC v International Bus. Machs. Corp., 4 NY3d 272, 277 [2005]; Matter of Bower v Board of Educ.,Cazenovia Cent. School Dist., 53 AD3d 967, 968 [2008], lv dismissed 11 NY3d837 [2008]). The agreement here states that "[i]f for any reason termination is required" suchtermination can be effected by presenting written confirmation "to either party" within the statedtime frame. The next sentence provides for a prorated return of plaintiff's deposit if theagreement is terminated within the first five years. The agreement does not specifically requirecause for termination. Thus, the agreement's plain language permits either party to terminate theagreement "for any reason" (i.e., without cause) by simply providing 90 days notice oftermination and defendants returning a portion of plaintiff's deposit. Defendants apparentlycomplied with those requirements, requiring denial of plaintiff's request for a declaration,specific performance, an injunction and punitive damages.
We disagree with plaintiff's contention that there was a question of fact concerning whetherPatton had authority to terminate the agreement on behalf of defendants. Patton testified at hisdeposition that, as a result of a meeting of the members of Cooperstown All Star Village, LLC,he was authorized to give plaintiff notice of termination. The only contradiction of this testimonywas an affidavit of plaintiff's father, who averred that a son of one of the members told him thatPatton did not have that authority or the members' consent. This double-hearsay statement wasinsufficient to raise a factual issue concerning Patton's authority to terminate the agreement.
Plaintiff also contends that Supreme Court should not have dismissed his cause of actionseeking money damages for defendants' alleged breach of the agreement by letting otherphotographers and videographers interfere with his exclusive right to supply photographicservices. Upon review of the complaint, we do not discern any such cause of action. In his causeof action seeking declaratory relief, plaintiff alleges such a breach of the agreement. Yet thatcause of action does not seek money damages. While plaintiff asserts another cause of action formoney damages and incorporates the prior allegations, that cause of action seeks damagesassociated with an anticipatory breach if an injunction and specific performance are not imposed.The complaint specifically states that plaintiff "will be damaged in money terms," limiting thiscause of action to future money damages for defendants' allegedly improper actions in permittingother photographers to provide services after the termination letter became effective. Hence,plaintiff did not allege a cause of action seeking money damages for defendants' past breach ofthe agreement.
Cardona, P.J., Spain, Rose and Garry, JJ., concur. Ordered that the order isaffirmed, with costs.