BESLOW v. NOVELL INC (1997)

Supreme Court, Appellate Division, First Department, New York.

William S. BESLOW and Andrew Poretz, Plaintiffs-Appellants, v. NOVELL, INC., Defendant-Respondent.

Decided: September 30, 1997

Before MURPHY, P.J., and MILONAS, WALLACH, RUBIN and MAZZARELLI, JJ.

Robert W. Kirby, for plaintiffs-appellants. Irving Scher, for defendant-respondent.

Order, Supreme Court, New York County (Walter Schackman, J.), entered July 12, 1996, which dismissed the complaint for failure to state a cause of action, unanimously affirmed, with costs.

We agree with the motion court that the documents relied upon by plaintiffs, including defendant's License Agreement, evidence only the existence of a free customer support program, not a contract to provide such a service perpetually, and, as the duration of the program cannot be fairly and reasonably supplied by implication, and as the program was one for services on which a reasonable time duration cannot be imposed, the program was terminable at will (see, Warner-Lambert Pharm. Co. v. John J. Reynolds, Inc., 178 F.Supp. 655, 661, affd. 280 F.2d 197; Haines v. City of New York, 41 N.Y.2d 769, 771-773, 396 N.Y.S.2d 155, 364 N.E.2d 820). Leave to replead was properly denied as the proposed amendment lacks merit.

MEMORANDUM DECISION.

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