Bellino Schwartz Padob Advertising, Inc. v. Solaris Marketing Group, Inc.

• Decision Date: 19 December 1995
• Citation: 222 A.D.2d 313,635 N.Y.S.2d 587
• Parties: BELLINO SCHWARTZ PADOB ADVERTISING, INC., Plaintiff-Appellant, v. SOLARIS MARKETING GROUP, INC., et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 587

635 N.Y.S.2d 587

222 A.D.2d 313

BELLINO SCHWARTZ PADOB ADVERTISING, INC., Plaintiff-Appellant, v. SOLARIS MARKETING GROUP, INC., et al., Defendants-Respondents.

Supreme Court, Appellate Division,

First Department.

Dec. 19, 1995.

M.S. Rapaport, for plaintiff-appellant.

T.E. Dinsmoor, for defendants-respondents.

Before SULLIVAN, J.P., and ELLERIN, WALLACH and RUBIN, JJ.

MEMORANDUM DECISION.

Orders, Supreme Court, New York County (Beatrice Shainswit, J.), entered April 29 and June 22, 1994, which granted the motions by defendants Titan Sports, Inc., MBC Productions, Inc. and Tom Avitabile for summary judgment dismissing the amended complaint as against those defendants, unanimously affirmed, with costs.

We find that the IAS court properly dismissed the first cause of action for breach of contract as against defendant Titan, which was not a signatory to the agreement between defendant Solaris and plaintiff. Nor did Solaris have either actual or apparent authority to act as Titan's agent in connection with the marketing and advertising campaign for a particular brand of vitamins (cf., Riverside Research Inst. v. KMGA, Inc., 68 N.Y.2d 689, 692, 506 N.Y.S.2d 302, 497 N.E.2d 669, affg. 108 A.D.2d 365, 370, 489 N.Y.S.2d 220; Plymouth Rock Fuel Corp. v. Leucadia, Inc., 100 A.D.2d 842, 474 N.Y.S.2d 79). Indeed, the terms and conditions of the Titan/Solaris License Agreement precluded any agency relationship between Solaris and Titan by specifically providing, in pertinent part, that "[N]othing herein contained shall be construed to place the parties in any partnership, agency or joint venture relationship; and Licensee (Solaris) shall have no power to obligate or bind Licensor (Titan) in any manner whatsoever".

The IAS court properly dismissed the second cause of action, for unjust enrichment, as against defendant Titan. The record reveals that Titan did not unjustly benefit from plaintiff's work since Solaris, rather than Titan, had produced commercials and placed and aired television commercials containing plaintiff's advertising materials (see, McGrath v. Hilding, 41 N.Y.2d 625, 629, 394 N.Y.S.2d 603, 363 N.E.2d 328). The existence of an express contract between Solaris and plaintiff governing the subject matter of the plaintiff's claim also bars any quasi-contractual claims against defendant Titan, as a third party nonsignatory to the valid and enforceable contract between those parties (Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388, 521 N.Y.S.2d 653, 516 N.E.2d 190; Feigen v. Advance Capital Mgt. Corp., 150 A.D.2d 281, 283, 541 N.Y.S.2d 797, lv. dismissed, lv. denied 74 N.Y.2d 874, 547 N.Y.S.2d 840, 547 N.E.2d 95).

The sixth cause of action for tortious interference with contract as against defendant Titan was also properly dismissed since Titan, by fulfilling its contractual right to review, approve and/or reject proposed advertising material to be used by its licensee, Solaris, in connection with a vitamin advertising campaign, was merely protecting the valuable intellectual property rights it had licensed to Solaris, and therefore did not intentionally cause defendant Solaris to breach the agreement with...