Bennett v. Atomic Prods. Corp.

• Decision Date: 28 October 2015
• Docket Number: 2014-01809, Index No. 29166/96.
• Citation: Bennett v. Atomic Prods. Corp., 2015 NY Slip Op 7806, 132 A.D.3d 928, 18 N.Y.S.3d 443 (N.Y. App. Div. 2015)
• Parties: Gerald W. BENNETT, et al., plaintiffs, Alan M. Wunderlich, doing business as Nuclear Laboratory Services, respondent, v. ATOMIC PRODUCTS CORPORATION, et al., appellants.
• Court: New York Supreme Court — Appellate Division

132 A.D.3d 928

18 N.Y.S.3d 443

2015 N.Y. Slip Op. 07806

Gerald W. BENNETT, et al., plaintiffs, Alan M. Wunderlich, doing business as Nuclear Laboratory Services, respondent

v.ATOMIC PRODUCTS CORPORATION, et al., appellants.

2014-01809, Index No. 29166/96.

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

Oct. 28, 2015.

Benjamin E. Carter, Riverhead, N.Y. and Miller & Wrubel P.C., New York, N.Y. (Adam J. Safer, Martin D. Edel, and Amanda F. Parsels of counsel), for appellants (one brief filed).

Bracken Margolin Besunder LLP, Islandia, N.Y. (Jeffrey D. Powell of counsel), for respondent.

L. PRISCILLA HALL, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.

Opinion

In an action to recover damages for breach of contract, the defendants appeal from so much of a judgment of the Supreme Court, Suffolk County (LaSalle, J.), entered December 10, 2013, as, upon a decision of the same court dated September 25, 2013, made after a nonjury trial, is in favor of the plaintiff Alan M. Wunderlich, doing business as Nuclear Laboratory Services, on the fourth and fifth causes of action and against them in the principal sum of $382,047.07.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The plaintiff Alan M. Wunderlich, doing business as Nuclear Laboratory Services (hereinafter Wunderlich), developed certain medical equipment for the defendant Atomic Products Corporation and its successor in interest, the defendant Biodex Medical Systems, Inc. (hereinafter together Atomic), pursuant to (1) an oral agreement entered into in 1979 between Wunderlich and Atomic, (2) a memorandum signed by Atomic's president on April 19, 1979, acknowledging the receipt of certain prototypes and that those items were given to Atomic for “time + a % of gross sales as noted,” (3) a subsequent oral agreement entered into in 1984 between Wunderlich and Atomic, and (4) a memorandum signed by Wunderlich on October 31, 1984, listing additional prototypes for which a percentage of gross sales were to be paid. The agreements did not expressly state when the percentage payments would stop. Atomic paid Wunderlich the agreed-upon percentages of gross sales for the products listed in the agreements through December 31, 1991, making the last payment therefor in March 1992.

Thereafter, the plaintiffs commenced this action against Atomic based on theories of breach of contract, seeking to recover percentage payments allegedly due and owing. Wunderlich alleged that, pursuant to their agreement, Atomic was required to make the percentage payments to Wunderlich for as long as Atomic sold the designated products. Atomic, however, understood their agreement to contemplate the continuation of percentage payments only as long as Wunderlich provided consulting services to Atomic. After a nonjury trial, the Supreme Court, inter alia, entered a judgment in favor of Wunderlich on the fourth and fifth causes of action and against Atomic in the principal sum of $382,047.07. Atomic appeals.

Contracts containing no definite term of duration are terminable at will (see Better Living Now, Inc. v. Image Too, Inc., 67 A.D.3d 940, 941, 889 N.Y.S.2d 653 ; Double Fortune Prop. Invs. Corp. v. Gordon, 55 A.D.3d 406, 866 N.Y.S.2d 111 ; Interweb, Inc. v. iPayment, Inc., 12 A.D.3d 164, 165, 783 N.Y.S.2d 468 ). A definite term of duration need not be relayed in express terms, and may be implied (see Haines v. City of New York, 41 N.Y.2d 769, 772, 396 N.Y.S.2d 155, 364 N.E.2d 820 ; Creative Foods Corp. v. Chef Francisco, 92 A.D.2d 462, 458 N.Y.S.2d 917 ), and “where a duration may be fairly and reasonably supplied by implication, a contract is not terminable at will” (Haines v. City of New York, 41 N.Y.2d at 772, 396 N.Y.S.2d 155, 364 N.E.2d 820 ). “In the absence of an express term fixing the duration of a contract, the courts may inquire into the intent of the parties and supply the missing term if a duration may be fairly and reasonably fixed by the surrounding circumstances and the parties' intent” (id.; see Better Living Now, Inc. v. Image Too, Inc., 67 A.D.3d at 941, 889 N.Y.S.2d 653 ).

“In reviewing a determination rendered after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing the witnesses and hearing the testimony” (Palombo Group v. Poughkeepsie City Sch. Dist., 125 A.D.3d 620, 621, 3 N.Y.S.3d 390 [internal quotation marks omitted]; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 ). Where the trial court's findings of fact rest in large measure on considerations relating to the credibility of witnesses, deference is owed to the trial court's credibility determinations (see Fire Is. Real Estate, Inc. v. Coldwell Banker Residential Brokerage, 131 A.D.3d 507, 15 N.Y.S.3d 159 ...