| Long Is. Jr. Soccer League v Back of the Net, Ltd. |
| 2011 NY Slip Op 05025 [85 AD3d 737] |
| June 7, 2011 |
| Appellate Division, Second Department |
| Long Island Junior Soccer League, Respondent, v Back ofthe Net, Ltd., Appellant. |
—[*1] Soffey & Soffey, Garden City, N.Y. (Joseph E. Soffey of counsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals froman order of the Supreme Court, Nassau County (Winslow, J.), entered July 19, 2010, whichdenied its motion to preliminarily enjoin the plaintiff from engaging in conduct allegedlyconstituting violations of a stipulation of settlement dated January 9, 2002.
Ordered that the order is affirmed, with costs.
The defendant operates a Web site primarily focused on youth soccer that features news andinformation, scores, schedules, and standings from various soccer leagues, including a youthsoccer league operated by the plaintiff. Since 1999 the plaintiff has operated its own Web sitecontaining similar information regarding its league.
In 2001 the plaintiff commenced this action against the defendant, and the action was settledpursuant to a so-ordered stipulation of settlement dated January 9, 2002. Paragraph 5 of thestipulation of settlement provides: "Plaintiff acknowledges that defendant has a right to publishnews and information concerning plaintiff on its Website including such items as scores,standings and events, all being subject to the laws of defamation and such other laws which mayexist." In April 2010, after the plaintiff took measures to prevent the defendant fromelectronically accessing the raw data on the plaintiff's Internet servers, the defendant moved topreliminarily enjoin the plaintiff from taking these measures, asserting that the plaintiff was inviolation of paragraph 5 of the stipulation of settlement.
"A stipulation of settlement is a contract, enforceable according to its terms. When a courtenforces a stipulation of settlement, it must effectuate the parties' intent. As with any contract,where the terms of a stipulation of settlement are unambiguous, the Supreme Court must giveeffect to the parties' intent based upon the plain meaning of the words used by the parties" (Alshawhati v Zandani, 82 AD3d805, 807 [2011] [internal quotation marks and citations omitted]; see Linsalato v Giuttari, 59 AD3d682, 683 [2009]; McKenzie v Vintage Hallmark, 302 AD2d 503, 504 [2003]).
Here, the plain meaning of paragraph 5 of the stipulation of settlement is that the [*2]defendant has the right to publish news and informationconcerning the plaintiff, including scores, standings, and events. Contrary to the defendant'scontention, however, the provision plainly does not obligate the plaintiff to gather suchinformation and provide it to the defendant in any particular form. The defendant does notdispute that there is nothing preventing it from viewing the information on the plaintiff's Website and manually recreating it for the purpose of publishing the information on its own Web site.Accordingly, the Supreme Court properly denied the defendant's motion.
The defendant is correct that the Supreme Court improvidently exercised its discretion inaccepting the plaintiff's submission of an affidavit of the president of the company hired by theplaintiff to prevent the defendant from electronically accessing its raw data. This affidavit wassubmitted after the return date of the motion, and the plaintiff offered no excuse for failing tosubmit this affidavit along its original opposition papers (see Courtney v Port Auth. of N.Y. & N.J., 34 AD3d 716, 718[2006]; Mosheyeva v Distefano, 288 AD2d 448, 449 [2001]; Romeo v Ben-SophFood Corp., 146 AD2d 688, 690 [1989]). Nevertheless, this affidavit did not contain anynew relevant facts, and the Supreme Court properly denied the motion, even withoutconsideration of this affidavit.
The defendant's remaining contention is based on matter that is dehors the record and is,thus, not properly before this Court. Rivera, J.P., Balkin, Lott and Austin, JJ., concur.