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Supreme Court, Appellate Division, First Department, New York.

SATRA LIMITED, et al., Plaintiffs-Appellants, v. The COCA-COLA COMPANY, et al., Defendants-Respondents.

Decided: February 10, 1998

Before SULLIVAN, J.P., and MILONAS, MAZZARELLI and ANDRIAS, JJ. Michael A. Lacher, for Plaintiffs-Appellants. Daniel J. King, for Defendants-Respondents.

Order, Supreme Court, New York County (Ira Gammerman, J.), entered April 10, 1996, which, inter alia, granted defendants' motion to dismiss plaintiffs' amended complaint, except for the first cause of action as against the Coca-Cola Company and Coca-Cola Financial Corporation for breach of contract, unanimously modified, on the law, to the extent of reinstating plaintiffs' fourth cause of action for breach of contract as against the Coca-Cola Company and Coca-Cola Financial Corporation only, and otherwise affirmed, without costs.

 For purposes of the instant preanswer motion to dismiss, the letter of February 28, 1990 is sufficient to support plaintiffs' fourth cause of action for breach of the Cola-Cola defendants' agreement to pay plaintiffs $200 per car over the 17,000 minimum on a one-time basis for the year 1990.   The proofs might well show that this letter, although preliminary to what was to be a more formal agreement, was intended to be binding (see, V'Soske v. Barwick, 2nd Cir., 404 F.2d 495, 499-500, cert. denied 394 U.S. 921, 89 S.Ct. 1197, 22 L.Ed.2d 454;  Four Seasons Hotels v. Vinnik, 127 A.D.2d 310, 515 N.Y.S.2d 1).   The essential terms appear to be stated, with any unarticulated terms referable to the prior agreements.   Nor are any Statute of Frauds problems apparent, there being a memorandum signed by the party to be charged, and payment to be a discrete one-time occurrence by its terms performed in one year.

 The balance of plaintiff's claims were properly dismissed.   The second cause of action for an accounting, based on an alleged oral agreement by Coca-Cola to pay Satra 10% commissions on any future business ventures entered into by Coca-Cola in the former Soviet Union, or on the performance of services by Satra for which it expected payment, is barred by the Statute of Frauds applicable to finders (General Obligations Law § 5-701 [a][10];  see, Minichiello v. Royal Bus. Funds Corp., 18 N.Y.2d 521, 277 N.Y.S.2d 268, 223 N.E.2d 793, cert. denied 389 U.S. 820, 88 S.Ct. 41, 19 L.Ed.2d 72), and to the rendition of services and payment of commissions over an indefinite period of time (General Obligations Law § 5-701[a][1];  see, Kalfin v. United States Olympic Comm., 209 A.D.2d 279, 618 N.Y.S.2d 724).   To the extent plaintiffs are alleging an oral modification to the existing Commission Agreement, such is also barred by the Statute of Frauds (see, Intercontinental Planning v. Daystrom, Inc., 24 N.Y.2d 372, 300 N.Y.S.2d 817, 248 N.E.2d 576).   Plaintiffs do not address the dismissal of the third cause of action.   With respect to the fifth and sixth causes of action, alleging that Coca-Cola breached agreements to grant plaintiffs the right to establish bottling operations in the former Soviet Union, and to enter into other joint ventures with plaintiffs, ample evidence demonstrates that Coca-Cola contemplated that plaintiffs perform studies and other preliminary work in connection with such operations and ventures, and there is no good ground to support the claim of binding agreements in these respects.   The seventh cause of action alleging that defendants were unjustly enriched by the Countertrade agreements was properly dismissed as precluded by the existence of an enforceable written contract on the same subject (Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388-389, 521 N.Y.S.2d 653, 516 N.E.2d 190).  That plaintiffs were to assist in opening additional markets for Coca-Cola in the former Soviet Union was clearly contemplated by the parties, as indicated by their “Protocol”, which was later superseded by the Commission and General Agreements.   Finally, the eighth cause of action for fraudulent inducement, alleging that defendants made promises they never intended to keep, such as to publicize plaintiffs' role in Coca-Cola's entry into the former Soviet market, lacks sufficient detail to convert what are essentially contract claims into a fraud claim (see, DePinto v. Ashley Scott Inc., 222 A.D.2d 288, 635 N.Y.S.2d 215).   We have considered plaintiffs' other arguments and find them to be without merit.


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