AIR LIQUIDE LARGE INDUSTRIES LP v. PRAXAIR INC (2006)

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered July 10, 2006, which, inter alia, upon a search of the record, awarded summary judgment in favor of defendant, declaring that plaintiff's notice of termination was not proper and otherwise dismissing the complaint, unanimously affirmed, with costs.

The motion court correctly concluded that Article 16.1 of the Argon Supply Agreement precluded notice of termination until on or after September 1, 2006, and thus, that plaintiff's notice of termination, dated July 26, 2005, was ineffective.   In reaching this conclusion, the motion court adopted an interpretation of the disputed provision consistent with ordinary usage and the principle of noscitur a sociis (see Popkin v. Sec. Mut. Ins. Co., 48 A.D.2d 46, 48, 367 N.Y.S.2d 492 [1975] ).

Even if the disputed provision were ambiguous, the outcome would be the same, since the undisputed evidence supports defendant Praxair's interpretation.   The record, containing letters, e-mails and affidavits from the original parties who negotiated and signed the Amended Agreement, indicates that termination of the Amended Agreement was prohibited prior to September 1, 2007, i.e., twelve months after notice of termination, which could not be given until on or after September 1, 2006.

We have considered plaintiff's remaining arguments and find them unavailing.