Long Island Airports Limousine Service Corp. v. Playboy-Elsinore Associates

• Decision Date: 17 July 1984
• Docket Number: D,No. 1363,PLAYBOY-ELSINORE,1363
• Citation: 739 F.2d 101
• Parties: LONG ISLAND AIRPORTS LIMOUSINE SERVICE CORP., Appellant, v.ASSOCIATES, Appellee. ocket 84-7278.
• Court: U.S. Court of Appeals — Second Circuit

Page 101

739 F.2d 101

LONG ISLAND AIRPORTS LIMOUSINE SERVICE CORP., Appellant, v. PLAYBOY-ELSINORE ASSOCIATES, Appellee.

No. 1363, Docket 84-7278.

United States Court of Appeals Second Circuit.

Argued June 6, 1984.

Decided July 17, 1984.

Michael S. Oberman, New York City (David S. Frankel, Kramer, Levin, Nessen, Kamin & Frankel, New York City and William M. Stewart, New York City, of counsel), for appellant.

Howard R. Reiss, New York City (Donovan, Leisure, Newton & Irvine, New York City, of counsel), for appellee.

Before OAKES and WINTER, Circuit Judges, and MISHLER, District judge. ^*

OAKES, Circuit Judge:

Long Island Airports Limousine Service Corp. (LIALS) appeals from that portion of a final judgment of the United States District Court for the Eastern District of New York, Frank X. Altimari, Judge, granting defendant-appellee Playboy-Elsinore Associates' motion for summary judgment on the fourth count of LIALS' complaint charging Playboy with wrongful termination of an agreement between the parties. We reverse.

FACTS

In November, 1980, LIALS and Playboy signed a "letter of intent," which provided that LIALS would operate a bus service between points on Long Island, New York, and the Playboy casino in Atlantic City, New Jersey. This agreement stated that the parties intended to "have a formal contract drawn up," at a later date, but that the letter of intent would serve as "the basis" for the formal contract. Among other terms, the agreement included an express reciprocal termination provision which permitted either party to terminate for cause upon 30 days' written notice.

On January 5, 1981, LIALS sent Playboy a proposed contract, which Playboy declined to execute, but which led to further discussions between the parties. Playboy then prepared and sent to LIALS a second agreement, dated March 25, 1981, which was executed by both sides. Under the terms of this agreement, LIALS was obliged to provide daily bus service to the Playboy hotel for a one year period commencing April 27, 1981, "excepting with certain conditions under which either party may, with specified notice, terminate the agreement earlier." Under a section of the agreement entitled "Coach Exteriors," dealing with the graphics to be painted on the buses, the contract also included the following language: "Also, if for any reason whatsoever, it becomes imperative for Playboy Hotel to discontinue the working agreement with your company during the contract period, and on 30 days written notice, Playboy Hotel will bear the entire cost of painting and graphic conversion back to your company specifications ...." The agreement did not contain any other express reference to termination rights of the parties.

In December, 1981, four months prior to the end of the one year contract period, Playboy sent LIALS a letter stating that "it is necessary to discontinue our relationship with your company to provide bus service." No reasons were stated for the termination, and Playboy does not allege that LIALS breached any of its obligations under the contract. This action, which was commenced in New York state court, and then removed by Playboy to federal district court, contained six causes of action. Count 4 of the complaint--the only subject of this appeal ¹--alleged that Playboy had breached its agreement with LIALS, since Playboy could only terminate for cause and no cause had been cited by Playboy.

Rejecting a recommendation of the magistrate to whom the case had been referred On appeal, LIALS makes numerous arguments in support of reversal. It states that the section from the March, 1981, agreement relied on below was not a termination provision, "or, at the very least, ... not so clearly a termination provision that parol evidence must be excluded." Appellant's position is that the November, 1980, letter of intent was not entirely superceded by the March, 1981, letter, and that the former clearly provides for termination only for cause. Alternatively, LIALS claims that the March, 1981, letter's language that "with certain conditions ... either party may, with specified notice, terminate the agreement" before the one year term, demonstrates reciprocal termination rights inconsistent with the lower court's reading, and thus, that there exists a material factual dispute which renders summary judgment inappropriate.

Judge Altimari granted Playboy summary judgment on Count 4. Seizing on the language in the Coach Exterior section of the March, 1981, letter, quoted above, the judge held that the language constituted an unambiguous "unilateral termination clause," and that the parol evidence rule barred consideration of the November, 1980, letter of intent, with its requirement of cause, to "contradict" that clause.

Playboy insists that the language in the March, 1981, letter is an unambiguous termination agreement, that the March, 1981, agreement was intended to supercede the November, 1980 letter of intent, and thus that the parol evidence rule was properly invoked. Moreover, it asserts that LIALS failed to make many of its arguments to the district court, and that it thus waived the claims.

DISCUSSION

The law in this circuit is clear: "where a contract is not wholly unambiguous, summary judgment must be denied even where both parties move for pre-trial resolution." Schering Corp. v. Home Insurance Co., 712 F.2d 4, 10 ...