TARRANT APPAREL GROUP v. With You, Inc., et al., Defendants-Appellants.

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

TARRANT APPAREL GROUP, Plaintiff-Respondent, v. CAMUTO CONSULTING GROUP, INC., et al., Defendants, With You, Inc., et al., Defendants-Appellants.

Decided: May 31, 2007

TOM, J.P., MARLOW, NARDELLI, GONZALEZ, KAVANAGH, JJ. Grimes & Battersby, LLP, New York (Edmund J. Ferdinand, III of counsel), for appellants. Kent, Beatty & Gordon, LLP, New York (Jack A. Gordon of counsel), for respondent.

Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered October 20, 2006, which, to the extent appealed from, denied the motion pursuant to CPLR 3211(a)7 by defendants With You and Simpson to dismiss the eighth cause of action, unanimously affirmed, with costs.

Performance rendered directly to plaintiff would indicate that plaintiff is a third-party beneficiary (see e.g. Internationale Nederlanden [U.S.] Capital Corp. v. Bankers Trust Co., 261 A.D.2d 117, 123, 689 N.Y.S.2d 455 [1999] ).   Drawing all inferences in plaintiff's favor, as one must on a motion to dismiss under CPLR 3211(a)(7), Simpson's obligation under section 6.6 of the Master License Agreement to “be actively involved in promoting the ․ Sub-Licensed Products” and to “publicly wear or use the ․ Sub-Licensed Products” is arguably performance that is rendered directly to plaintiff, the sub-licensee.   Neither New York Pepsi-Cola Distribs. Assn. v. Pepsico, Inc., 240 A.D.2d 315, 659 N.Y.S.2d 441 [1997] nor Artwear, Inc. v. Hughes, 202 A.D.2d 76, 615 N.Y.S.2d 689 [1994] involved an obligation by the licensor akin to section 6.6 of the Master License Agreement.   Appellants' argument that section 6.6 does not apply because plaintiff failed to satisfy a condition precedent is without merit;  the condition precedent applies to section 7.1 as amended, not section 6.6.

In light of our disposition of this appeal, we need not reach plaintiff's argument under CPLR 3211(d) that appellants' motion was properly denied because of the need for further discovery.