TIRE AND BATTERY CENTER INC v. AUTOMOBILE CLUB OF NEW YORK INC (1998)

In an action, inter alia, to recover damages for breach of contract, the defendant Automobile Club of New York, Inc., appeals from so much of an order of the Supreme Court, Rockland County (Sherwood, J.), dated October 29, 1997, as denied those branches of its motion which were to dismiss the first, second, third, fourth, fifth, and tenth causes of action in the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the appellant's motion which were to dismiss the first, second, third, fourth, fifth, and tenth causes of action in the complaint are granted, and those causes of action are dismissed insofar as asserted against the appellant.

 The agreement between the parties was duly terminated by the appellant pursuant to a provision therein allowing for termination upon 30 days notice by either party (see, Moon v. Southside Hosp., 248 A.D.2d 523, 669 N.Y.S.2d 876;  Center Green, Inc. v. Boehm, 247 A.D.2d 869, 668 N.Y.S.2d 521;  Big Apple Car v. City of New York, 204 A.D.2d 109, 611 N.Y.S.2d 533).  In addition, the Supreme Court erred in applying the exception to the parol evidence rule for the partial performance of an oral modification (see, Anostario v. Vicinanzo, 59 N.Y.2d 662, 463 N.Y.S.2d 409, 450 N.E.2d 215;  Burns v. McCormick, 233 N.Y. 230, 232, 135 N.E. 273;  Cooper v. Schube, 86 A.D.2d 62, 449 N.Y.S.2d 32, affd. 57 N.Y.2d 1016, 457 N.Y.S.2d 479, 443 N.E.2d 953).

 Moreover, the plaintiffs have not alleged facts sufficient to sustain a cause of action based upon fraud (see, Moon v. Southside Hosp. supra;  Hoydal v. City of New York, 154 A.D.2d 345, 346, 545 N.Y.S.2d 823).

MEMORANDUM BY THE COURT.