NEW YORK PEPSI COLA DISTRIBUTORS ASSOCIATION INC v. PEPSICO INC (1997)

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered July 2, 1996, dismissing the action for failure to state a cause of action, unanimously affirmed, with costs.

 The IAS court properly held that plaintiffs, independent wholesale distributors who purchase soft drinks for resale from an independent bottler not a party to this action, are not third-party beneficiaries of any contracts between the bottler and defendants, the bottler's licensor, it being settled that a sublicensee is not a third-party beneficiary of a contract between a licensor and direct licensee (see, Artwear, Inc. v. Hughes, 202 A.D.2d 76, 83-84, 615 N.Y.S.2d 689), and since any benefits that plaintiffs derive from such contracts are incidental (see, Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 336, 464 N.Y.S.2d 712, 451 N.E.2d 459).   Nor does defendants' alleged failure to prevent other distributors from transshipping licensed products into plaintiffs' exclusive territories state a claim for breach of fiduciary duty in the absence of a contract between the parties (see, Mandelblatt v. Devon Stores, 132 A.D.2d 162, 167-168, 521 N.Y.S.2d 672), or allegations showing an “intimate relationship” (see, Brasport, S.A. v. Hoechst Celanese Corp., 747 F.Supp. 199, 202).   The court also properly dismissed the causes of action for tortious interference with contract since no contracts were breached (see, Artwear, Inc. v. Hughes, supra, at 85, 615 N.Y.S.2d 689), and for tortious interference with prospective business relations absent allegations of culpable conduct (see, Guard-Life Corp. v. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 191, 428 N.Y.S.2d 628, 406 N.E.2d 445).   Leave to replead was properly denied in the absence of a “proposed new pleading supported by evidence as on a motion for summary judgment” (Abbott v. Herzfeld & Rubin, 202 A.D.2d 351, 352, 609 N.Y.S.2d 230, lv. dismissed in part, lv. denied in part, 83 N.Y.2d 995, 616 N.Y.S.2d 475, 640 N.E.2d 142).

MEMORANDUM DECISION.