Carvel Corp. v. Rait

• Decision Date: 09 June 1986
• Citation: 117 A.D.2d 485,503 N.Y.S.2d 406
• Parties: CARVEL CORPORATION, Respondent, v. Harvey RAIT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 406

503 N.Y.S.2d 406

117 A.D.2d 485

CARVEL CORPORATION, Respondent, v. Harvey RAIT, Appellant.

Supreme Court, Appellate Division Second Department.

June 9, 1986.

Nathanson & Devack, Franklin Square (Mitchell J. Devack and Harold Somer, of counsel), for appellant.

Steven B. Becker, Yonkers, for respondent.

Before LAZER, J.P., and BRACKEN, BROWN and LAWRENCE, JJ.

PER CURIAM.

The defendant was licensed to operate a Carvel ice cream store in Franklin Square, Nassau County, New York, and the term of the license agreement ran to October 31, 1984. Although the plaintiff Carvel Corporation (hereinafter Carvel) declined to renew the agreement, it is undisputed that the defendant continued to operate a retail ice cream store after that date at the same location as the former Carvel store.

Carvel commenced an action seeking, among other things, a permanent injunction against the defendant pursuant to the terms of paragraph 31 of the license agreement, which provided:

"To prevent dilution of the exclusivity of the valuable Carvel know-how and Carvel trade secrets to be acquired by Licensee hereunder, it is agreed as part of the consideration to, and inducement for, Licensor entering into this agreement that in the event Licensee sells the Carvel Store or abandons the Carvel Store provided for in this license, or in the event this license is terminated for any reason except for Licensor's breach, then for a period of three (3) years next following such event Licensee shall not directly or indirectly engage in whole or in part in the production, distribution or sale of ice cream or other frozen desserts whether as proprietor, employee, officer, director, agent, joint venturer, partner or other capacity whatsoever, within a radius of two (2) miles of the site of the within Carvel Store. The provisions of this paragraph shall survive termination, abandonment or other cancellation of this agreement".

Carvel thereafter moved for partial summary judgment on its cause of action seeking a permanent injunction, or, in the alternative, for a preliminary injunction. In opposition, the defendant argued that the restrictive covenant contained in the license agreement, by its terms, only applied in the event the license was "terminated" and, in this case, the covenant was inapplicable because the license had not "terminated" but, rather, had "expired". The defendant further argued that the agreement, and, in particular, the restrictive covenant, were unconscionable and unreasonable.

Special Term granted that branch of the motion which was for partial summary judgment, holding that an "expiration" of the agreement was but a form of "termination" and, therefore, that the covenant applied. The court also found no issue of fact precluding a determination, as a matter of law, that the restriction was reasonable and not unconscionable. We agree.

The record fails to reveal the existence of a triable issue with respect to the interpretation of the language of the license agreement which would preclude the entry of judgment as a matter of law on the plaintiff's cause of action for a permanent injunction. It is, of course, fundamental that the responsibility to interpret written instruments is one vested in the court, which must ascertain the intention of the parties from the language which they have employed (Mallad Constr. Corp. v. County Fed. Sav. & Loan Assn., 32 N.Y.2d 285, 291, 344 N.Y.S.2d 925, 298 N.E.2d 96; see also, Zodiac Enterprises v. American Broadcasting Co., 81 A.D.2d 337, 339, 440 N.Y.S.2d 240, affd. 56 N.Y.2d 738, 452 N.Y.S.2d 20, 437 N.E.2d 279). Thus, it is settled that the " '[i]nterpretation of an unambiguous contract provision is a function for the court, and matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the face of the instrument' " (Chimart Assoc. v. Paul, 66 N.Y.2d 570, 572-573, 498 N.Y.S.2d 344, 489 N.E.2d 231, quoting from Teitelbaum Holdings v. Gold, 48 N.Y.2d 51, 56, 421 N.Y.S.2d 556, 396 N.E.2d 1029).

Moreover, "the threshold decision on whether a writing is ambiguous is the exclusive province of the court" (Sutton v. East Riv. Sav. Bank, 55 N.Y.2d 550, 554, 450 N.Y.S.2d 460, 435 N.E.2d 1075; see also, Schmidt v. Magnetic Head Corp., 97 A.D.2d 151, 156, 468 N.Y.S.2d 649). Even in the event that an ambiguity is discerned, so as to permit reference to extrinsic evidence, the interpretation of the ambiguous language may nevertheless be determined by the court on a motion for summary judgment where the parties rely upon the written agreement and do not refer to parol evidence to shed light upon the intended meaning of their words (Mallad Constr. Corp. v. County Fed. Sav. & Loan Assn., supra, 32 N.Y.2d at pp. 290-291, 344 N.Y.S.2d 925, 298 N.E.2d 96; Tantleff v. Truscelli, 110 A.D.2d 240, 244, 493 N.Y.S.2d 979). The Court of Appeals has stated (Mallad Constr. Corp. v. County Fed. Sav. & Loan Assn., supra, 32 N.Y.2d at pp. 290-291, 344 N.Y.S.2d 925, 298 N.E.2d 96):

"To defeat summary judgment the opponent must present evidentiary facts sufficient to raise a triable issue of fact, and averments merely stating conclusions, of fact or of law, are insufficient (e.g., Ehrlich v. American Moninger Greenhouse, 26 N.Y.2d 255, 259 [309 N.Y.S.2d 341, 257 N.E.2d 890]; P.D.J. Corp. v. Bansh Props., 29 AD2d 927 affd 23 NY2d 971, [298 N.Y.S.2d 988, 246 N.E.2d 749]; 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., p 3212.05c, esp. p. 32-142.36; 6 Carmody-Wait, N.Y. Prac. [2d ed], § 39.29). Thus, it is not enough for the opponent to show that an agreement is ambiguous permitting the introduction of parol evidence. The opponent must also disclose in evidentiary form the particular parol evidence, if any, on which it relies. (Ehrlich v. American Moninger Greenhouse, 26 NY2d 255, [309 N.Y.S.2d 341, 257 N.E.2d 890] supra; Hertz Commercial Leasing Corp. v. Transportation Credit Clearing House, 64 Misc 2d 910 [App.Term], revg. 59 Misc 2d 226 .) Otherwise, there are only documents to interpret, and the court may resolve ambiguities appearing in the documents on a motion for summary judgment (see Rentways, Inc. v. O'Neill Milk & Cream Co., 308 N.Y. 342, 349 ; Hertz Commercial Leasing Corp. v. Transportation Credit Clearing House, supra; 4 Williston, Contracts [3d ed.], § 601; 10 N.Y. Jur., Contracts, § 190)".

However, where an ambiguity in the contractual language is found to exist, and the determination of the parties' intent "depends on the credibility of extrinsic evidence, then such determination is to be made by the jury" (Hartford Acc. & Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 172, 350 N.Y.S.2d 895, 305 N.E.2d 907; see also, Aronson v. Riley, 59 N.Y.2d 770, 773, 464 N.Y.S.2d 723, 451 N.E.2d 470; Sutton v. East Riv. Sav. Bank, supra, 55 N.Y.2d at p. 554, 450 N.Y.S.2d 460, 435 N.E.2d 1075; Mallad Constr. Corp. v. County Fed. Sav. & Loan Assn., supra, 32 N.Y.2d at p. 291, 344 N.Y.S.2d 925, 298 N.E.2d 96).

In this case, the parties rely solely upon the written instrument and do not refer to parol evidence for the purpose of proving what was intended by the disputed contractual language. Thus, no questions of credibility are raised, and there are no inferences to be drawn from extrinsic evidence. It follows that the papers submitted on the motion for summary judgment did not present a triable issue of fact for a jury's determination. Rather, the motion presented an issue of law, and Special Term properly assumed the task of interpreting the pertinent language and deciding the motion (see, State of New York v. Home Indem. Co., 66 N.Y.2d 669, 672, 495 N.Y.S.2d 969, 486 N.E.2d 827; Tantleff v. Truscelli, supra, 110 A.D.2d at p. 244, 493 N.Y.S.2d 979; cf. Aronson v. Riley, supra, 59 N.Y.2d at p. 773, 464 N.Y.S.2d 723, 451 N.E.2d 470).

In reviewing the interpretation given by Special Term, "the intent of the parties is to be given paramount consideration" (Tantleff v. Truscelli, supra, 110 A.D.2d at p. 244, 493 N.Y.S.2d 979; see also, Greenwich Vil. Assoc. v. Salle, 110 A.D.2d 111, 114, 493 N.Y.S.2d 461; Schmidt v. Magnetic Head Corp., 97 A.D.2d 151, supra, at p. 157, 468...