TOWNSEND OIL CORPORATION PLAINTIFF APPELLANT v. ANTHONY MARINI ET AL DEFENDANTS AND EDWARD DUFFY DEFENDANT RESPONDENT (2010)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff commenced this action seeking damages for the alleged breach of a Branded Dealer Supply Agreement (agreement) by defendants.   We conclude that Supreme Court properly granted the motion of Edward A. Duffy (defendant) seeking summary judgment dismissing the complaint against him, although our reasoning differs from that set forth in the court's decision and order.   The agreement provides, in relevant part, that “[plaintiff] shall sell and the [defendants] shall purchase during the term of this [a]greement and any extensions or renewals, the gasoline petroleum products and other products marketed and used by [plaintiff], all as shall be determined by [plaintiff].”   Contrary to the determination of the court, the agreement is not a requirements agreement within the meaning of UCC 2-306 inasmuch as it is not exclusive on its face (see Harvey v Fearless Farris Wholesale, Inc., 589 F.2d 451, 461;  see generally Feld v. Henry S. Levy & Sons, 37 N.Y.2d 466, 469-470).   Nevertheless, we agree with the contention raised by defendant in Supreme Court, and as an alternative ground for affirmance on appeal (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 N.Y.2d 539, 545-546), that the agreement is not enforceable because no quantity term appears therein (see UCC 2-201[1];  International Commercial Resources, Ltd. v Jamaica Pub. Servs.   Co., Ltd., 612 F Supp 1153, 1155, affd 805 F.2d 390).

Patricia L. Morgan

Clerk of the Court