MAGARIAN CO INC v. TIMBERLAND COMPANY (1997)

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered October 12, 1996, which denied defendant's motion to dismiss the complaint and directed defendant to serve an answer, unanimously reversed, on the law, without costs, and the motion to dismiss the complaint granted.   The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint.

 Despite the strong presumptions favoring the complaint on a CPLR 3211(a)(7) motion, such as that the court must accept each factual allegation as true and make no effort to evaluate the ultimate merits of the case (219 Broadway v. Alexander's, 46 N.Y.2d 506, 509, 414 N.Y.S.2d 889, 387 N.E.2d 1205);  that the complaint should be liberally construed in favor of the non-moving party (Metro. Transp. Authority v. Triumph Adv. Prods., 116 A.D.2d 526, 527, 497 N.Y.S.2d 673);  that a claim should not be dismissed “when a cause of action may be discerned no matter how poorly stated” (Gorman v. Gorman, 88 A.D.2d 677, 678, 451 N.Y.S.2d 455;  see also, Foley v. D'Agostino, 21 A.D.2d 60, 65, 248 N.Y.S.2d 121);  that any fact that can be fairly implied from the pleadings will be deemed alleged (Stern v. Consumer Equities Assocs., 160 A.D.2d 993, 994, 554 N.Y.S.2d 714;  see also, Two Clinton Sq. v. Friedler, 91 A.D.2d 1193, 1194, 459 N.Y.S.2d 179);  and that facts from affidavits may be considered as supplementary to the complaint to show the cause of action to be valid (Ackerman v. 305 East 40th Owners Corp., 189 A.D.2d 665, 666, 592 N.Y.S.2d 365;  Rovello v. Orofino Realty, 40 N.Y.2d 633, 635, 389 N.Y.S.2d 314, 357 N.E.2d 970), the motion court erred in refusing to dismiss this complaint, which sounded in breach of a fiduciary relationship.

 The record shows that plaintiff failed to support its assertion of such a relationship with any objective fact.   The allegation also ran contrary to the tenor of the parties' retail agreement that gave each of them the unconditional right to terminate it at will (see Guard-Life v. Parker Hardware Mfg., 50 N.Y.2d 183, 194, 428 N.Y.S.2d 628, 406 N.E.2d 445;  A.S. Rampell v. Hyster Co., 3 N.Y.2d 369, 165 N.Y.S.2d 475, 144 N.E.2d 371).   There was no showing that defendant had undertaken to act “primarily for the benefit of another in matters connected with [its] undertaking” (Restatement [Second] of Agency § 13, comment a ).   Furthermore, there was no showing of “special circumstances” that could have transformed the parties' business relationship to a fiduciary one (see, V. Ponte & Sons v. Amer. Fibers Intl., 222 A.D.2d 271, 272, 635 N.Y.S.2d 193), such as control by one party of the other for the good of the other (see, Matter of Entes, 222 A.D.2d 62, 63, 644 N.Y.S.2d 533;  Gordon v. Bialystoker Ctr. & Bikur Cholim, 45 N.Y.2d 692, 698, 412 N.Y.S.2d 593, 385 N.E.2d 285;  Apple Records v. Capitol Records, 137 A.D.2d 50, 57, 529 N.Y.S.2d 279) or creation of an agency relationship (Northeast Gen. Corp. v. Wellington Adv., 82 N.Y.2d 158, 162, 604 N.Y.S.2d 1, 624 N.E.2d 129).   Instead, the record shows that the correspondence asserted by plaintiff as proof of a fiduciary relationship was nothing more than mass-mailings to defendant's retail distributors nationwide, wherein defendant aggressively and exclusively pursued its own interests, even to the point of successfully pressuring plaintiff-distributor to act contrary to its own pecuniary interests.

MEMORANDUM DECISION.