STRATEGIC DOMAIN INC v. MEDSITE INC (2003)

Judgment, Supreme Court, New York County (Helen Freedman, J.), entered February 14, 2002, after a nonjury trial, dismissing the complaint in an action by an advertising agency to recover three months of fees under a 90 day termination provision allegedly contained in an oral contract, unanimously affirmed, without costs.

The weight of the evidence supports the trial court's finding, largely one of credibility (see Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369), that the subject oral contract, pursuant to which plaintiff provided advertising services to defendant pending negotiation of a written contract, did not contain the 90-day termination provision that plaintiff seeks to enforce.   A different result is not required by the fact that during the three-month period the parties were unsuccessfully negotiating a written contract, defendant paid plaintiff the monthly retainer fee specified in plaintiff's proposed written contract (see Scheck v. Francis, 26 N.Y.2d 466, 469-470, 311 N.Y.S.2d 841, 260 N.E.2d 493;  Wiscovitch Assoc. v. Philip Morris Cos., 193 A.D.2d 542, 542, 598 N.Y.S.2d 193).   Nor is a different result required by plaintiff's increased expenditures for space and staff made in anticipation of, and perhaps to facilitate, a successful negotiation (see Absher Constr. Corp. v. Colin, 233 A.D.2d 279, 649 N.Y.S.2d 174).   The record does not support plaintiff's claim that defendant promised plaintiff continued business if plaintiff expanded.