PARKVIEW RESTAURANT GROUP-NY, LLC v. WWF New York, Inc.

• Decision Date: 23 October 2003
• Citation: 766 N.Y.S.2d 31,309 A.D.2d 636
• Court: New York Supreme Court — Appellate Division
• Parties: PARKVIEW RESTAURANT GROUP-NY, LLC, et al., Appellants,<BR>v.<BR>WWF NEW YORK, INC., et al., Respondents.

309 A.D.2d 636

766 N.Y.S.2d 31

PARKVIEW RESTAURANT GROUP-NY, LLC, et al., Appellants,

v.WWF NEW YORK, INC., et al., Respondents.

Decided October 23, 2003.

Concur — Buckley, P.J., Tom, Sullivan and Marlow, JJ.

Plaintiffs Parkview Restaurant Group-NY, LLC, and Robert Gries, a managing member of Parkview, are the recipients of a sublicense from defendants WWF New York, Inc. (WWF New York) and World Wrestling Federation Entertainment, Inc. (WWF Entertainment) (collectively, WWF) to operate a theme restaurant in the City of New York using the trademark World Wrestling Federation. In connection with the restaurant's operations, plaintiff Parkview entered into a distributorship agreement, dated November 1, 1999, with DiCarlo Distributors, Inc. pursuant to which DiCarlo became the restaurant's primary food distributor. The distributorship agreement was to continue for a term through and including October 31, 2002, although either party, upon 60 days prior notice, could terminate the agreement any time after November 30, 2000. Plaintiff was to earn a 1% discount for prompt payment of invoices and purchases of high volume. In accordance with the terms and conditions of the distributorship agreement, DiCarlo advanced $100,000 to plaintiff, as evidenced by a promissory note annexed as an exhibit to the distributorship agreement, the payment of which plaintiff Gries guaranteed. Subsequently, pursuant to an asset purchase agreement and an assignment and assumption agreement, dated May 3, 2000, defendant WWF New York purchased and assumed some of Parkview's assets and liabilities. WWF New York assumed plaintiff's distributorship agreement with DiCarlo in its entirety, expressly accepting, under section 1.3 and schedule 1.3 of the asset purchase agreement, plaintiff's obligations under the distributorship agreement. In addition, WWF New York expressly agreed to indemnify and hold plaintiff harmless from any liability or obligation assumed by WWF New York. WWF Entertainment unconditionally guaranteed the full and prompt payment of all of WWF New York's obligations to plaintiff. During the negotiations with WWF leading to the asset purchase agreement, Gries agreed to reduce the sales price by the amount of the then outstanding balance on DiCarlo's advance to Parkview. A worksheet reflecting that balance was exchanged between the parties. Sometime after the closing of the asset purchase agreement and WWF's takeover of the restaurant operation, WWF ceased its performance under the distributorship agreement, resulting in the commencement of an action by DiCarlo against plaintiffs on the note and Gries's guaranty. DiCarlo moved for summary judgment...