BESTFORM INC v. Century Business Credit Corporation, Defendant-Appellant.

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

BESTFORM, INC., Plaintiff-Respondent, v. Burton G. HERMAN, et al., Defendants, Century Business Credit Corporation, Defendant-Appellant.

Decided: November 17, 2005

BUCKLEY, P.J., NARDELLI, WILLIAMS, GONZALEZ, McGUIRE, JJ. Hahn & Hessen LLP, New York (John P. McCahey of counsel), for appellant. Vandenberg & Feliu, LLP, New York (Mark R. Kook of counsel), for respondent.

Judgment, Supreme Court, New York County (Richard B. Lowe III, J.), entered November 23, 2004, awarding plaintiff, after a nonjury trial, the principal sum of $300,000, unanimously affirmed, with costs.

We affirm for the following reasons (see Matter of Am. Dental Coop. v. Attorney General, 127 A.D.2d 274, 279 n. 3, 514 N.Y.S.2d 228 [1987] ).   Notwithstanding that defendant-appellant's payment obligation was recited to be “conditioned upon” a confirmation by the buyer of plaintiff's merchandise that the goods shipped “conform” to the buyer's purchase orders, the payment obligation was not subject to an express condition precedent that required strict compliance.   The provision neither stated that such compliance was required nor set forth the consequences of noncompliance (see Promo-Pro, Ltd. v. Lehrer McGovern Bovis, Inc., 306 A.D.2d 221, 761 N.Y.S.2d 655 [2003], lv. denied 100 N.Y.2d 628, 769 N.Y.S.2d 192, 801 N.E.2d 413 [2003];  cf. David Fanarof, Inc. v. Dember Constr. Corp., 195 A.D.2d 346, 347, 600 N.Y.S.2d 226 [1993] ).   Evidence of industry practice did not contradict the terms of the agreement (cf. Gordon & Breach Sci. Publ., Inc. v. New York Sys. Exchange, Inc., 267 A.D.2d 52, 699 N.Y.S.2d 673 [1999] ) but merely improperly shed light on the meaning of “conform” in the agreement (see News Am. Mktg., Inc. v. Lepage Bakeries, Inc., 16 A.D.3d 146, 148, 791 N.Y.S.2d 80 [2005] ).   Moreover, the court properly construed the agreement to avoid a result that was absurd, commercially unreasonable and contrary to the reasonable expectations of the parties (see Matter of Lipper Holdings, LLC v. Trident Holdings, LLC, 1 A.D.3d 170, 766 N.Y.S.2d 561 [2003] ).   In addition, upon our own review of the record, we find that the court properly attributed the buyer's conduct to defendant-appellant.

We have considered appellant's other contentions and find them unavailing.