TECTRADE INTERNATIONAL LTD v. FERTILIZER DEVELOPMENT AND INVESTMENT

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

TECTRADE INTERNATIONAL LTD., et al., Plaintiffs-Appellants, v. FERTILIZER DEVELOPMENT AND INVESTMENT, B.V., et al., Defendants-Respondents.

Decided: February 18, 1999

ROSENBERGER, J.P., NARDELLI, TOM and ANDRIAS, JJ. Peter J. Schmerge, for plaintiffs-appellants. Kevin F. Kostyn, for defendants-respondents.

Judgment, Supreme Court, New York County (Stephen Crane, J.), entered August 13, 1998, dismissing the action, unanimously affirmed, with costs.   Appeal from order, same court and Justice, entered April 16, 1998, unanimously dismissed, without costs, as superseded by the appeal from the judgment.

 Plaintiffs' recasting of their previously dismissed breach of contract claim into a breach of an oral joint venture agreement was properly rejected by the motion court as an improper attempt to rewrite the parties' existing agreements in the face of substantial contradictory documentary evidence.   The provisions of the parties' contract “prevail over [the] conclusory allegations of the complaint” (805 Third Ave. Co. v. M.W. Realty Assocs., 58 N.Y.2d 447, 451, 461 N.Y.S.2d 778, 448 N.E.2d 445), and although, on a motion addressed to the sufficiency of a complaint, the facts pleaded are presumed to be true and accorded every favorable inference, “allegations consisting of bare legal conclusions, as well as factual claims inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration” (Caniglia v. Chicago Tribune-New York News Syndicate, 204 A.D.2d 233, 233-234, 612 N.Y.S.2d 146).

We have considered plaintiffs' other arguments and find them to be unavailing.

MEMORANDUM DECISION.