Array Biopharma, Inc. v. AstraZeneca AB

• Citation: 184 A.D.3d 463,126 N.Y.S.3d 91
• Decision Date: 11 June 2020
• Docket Number: Index 657269/17,11648
• Parties: ARRAY BIOPHARMA, INC., Plaintiff–Respondent–Appellant, v. ASTRAZENECA AB, Defendant-Appellant, AstraZeneca PLC, Defendant-Respondent.
• Court: New York Supreme Court Appellate Division

184 A.D.3d 463

126 N.Y.S.3d 91

ARRAY BIOPHARMA, INC., Plaintiff–Respondent–Appellant,

v. ASTRAZENECA AB, Defendant-Appellant,AstraZeneca PLC, Defendant-Respondent.

11648

Index 657269/17

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

ENTERED: JUNE 11, 2020

Williams & Connolly LLP, New York (Sarah M. Harris of the bar of the District of Columbia, admitted pro hac vice, of counsel), for AstraZeneca AB, appellant and AstraZeneca PLC, respondent.

Skadden, Arps, Slate, Meagher & Flom LLP, New York (Kurt Wm. Hemr of counsel), for Array BioPharma Inc., respondent-appellant.

Friedman, J.P., Mazzarelli, Gesmer, Singh, Gonza´lez, JJ.

Judgment, Supreme Court, New York County (O. Peter Sherwood, J.), entered September 17, 2019, dismissing the complaint against AstraZeneca PLC, and bringing up for review an order, same court and Justice, entered on or about July 31, 2019, which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss the amended complaint as against defendant AstraZeneca PLC, and denied defendants' motion to dismiss the complaint as against defendant AstraZeneca AB, unanimously affirmed, without costs.

Supreme Court properly refused to dismiss the claim against AstraZeneca AB (AZ AB). Under CPLR 3211[a][1], dismissal is only warranted if the documentary evidence resolves all factual issues and disposes of plaintiff's claim as a matter of law ( Foster v. Kovner, 44 A.D.3d 23, 28, 840 N.Y.S.2d 328 [1st Dept. 2007] ). Defendants submitted only excerpts from the agreements related to the Merck collaboration. This limited submission was not adequate to demonstrate how the agreements were intended to work together, and whether Merck received any sublicensee rights outside the selumetinib sublicense agreement.

We agree with the court's decision to dismiss the complaint against AstraZeneca PLC (AZ PLC) but not on the jurisdictional grounds stated by the motion court (see Universal Inv. Advisory SA v. Bakrie Telecom Pte., Ltd., 154 A.D.3d 171, 179, 62 N.Y.S.3d 1 [1st Dept. 2017] ; Tate & Lyle Ingredients Ams., Inc. v. Whitefox Tech. USA, Inc., 98 A.D.3d 401, 402, 949 N.Y.S.2d 375 [1st Dept. 2012] ). Rather, we find that the sole claim of breach of contract against AZ PLC must be dismissed for failure to plead, and based upon documentary evidence. Generally, a breach of contract claim cannot be asserted against a non-signatory to the contract ( Randall's Is. Aquatic Leisure, LLC v. City of New York, 92 A.D.3d...