Richmor Aviation, Inc. v. Sportsflight Air, Inc.

• Decision Date: 17 March 2011
• Citation: 82 A.D.3d 1423,918 N.Y.S.2d 806
• Parties: RICHMOR AVIATION, INC., Respondent, v. SPORTSFLIGHT AIR, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 806 82 A.D.3d 1423 RICHMOR AVIATION, INC., Respondent, v. SPORTSFLIGHT AIR, INC., Appellant. Supreme Court, Appellate Division, Third Department, New York. March 17, 2011.

Law Office of Martin J. Murray, New York City (Martin J. Murray of counsel), for appellant.

Tabner, Ryan & Keniry, L.L.P., Albany (Brian M. Quinn of counsel), for respondent.

Before: CARDONA, P.J., MERCURE, SPAIN, MALONE JR. and STEIN, JJ.

STEIN, J.

Appeal from an order and judgment of the Supreme Court (Czajka, J.), entered February 4, 2010 in Columbia County, upon a decision of the court in favor of plaintiff.

In June 2002, defendant entered into a contract with plaintiff pursuant to which plaintiff would provide exclusive use of a single Gulfstream IV aircraft to the United States Government in transactions brokered by defendant for a term to expire on November 6, 2002. An appendix to the contract provided that defendant would guarantee 250 flight time hours within six months ¹ "and the option to do fifty (50) hours per month thereafter." It is undisputed that the charter price was significantly lower than the market rate. Defendant continued to broker flights between the Government and plaintiff until 2005. In 2006, plaintiff submitted an invoice to defendant requesting payment for unused flight time allegedly guaranteed to it by defendant. Defendant rejected the invoice and plaintiff thereafter commenced this action for, among other things, damages.

Following discovery, Supreme Court conducted a trial, at which plaintiff's president, William Richards, and defendant's owner and sole employee, Donald Moss, were the only witnesses. Richards' testimony reflected his position that plaintiff and defendant orally agreed to extend the initial contract, with defendant guaranteeing 50 hours of referred flight time per month, while Moss' testimony supported his assertion that, after the expiration of the term of the contract in November 2002, defendant simply agreed to continue to broker flights on an "as needed" basis, with no minimum commitment. Supreme Court ruled from the bench that defendant was contractually obligated to refer 50 hours of flight time to plaintiff each month. By subsequent written decision and order, the court determined that this obligation terminated in January 2005. Thereafter, the court issued an order and judgment awarding plaintiff more than $1 million in damages, plus interest, from which defendant now appeals.

We are unpersuaded by defendant's contention that Supreme Court's finding that the parties operated after November 2002 pursuant to the terms of the written contract was against the weight of the evidence. "In reviewing a trial court's decision rendered after a nonjury trial, this Court may independently consider the probative weight of the evidence and the inferences to be drawn therefrom and grant the judgment [it] deem[s] appropriate" ( Winkler v. Kingston Hous. Auth., 259 A.D.2d 819, 823, 686 N.Y.S.2d 513 [1999] [citations omitted]; see Shon v. State of New York, 75 A.D.3d 1035, 1036, 906 N.Y.S.2d 642 [2010]; but see Thoreson v. Penthouse Intl., 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992]; Morris v. Crawford, 304 A.D.2d 1018, 1020-1021, 757 N.Y.S.2d 383 [2003] ). Nevertheless, this Court generally defers to credibility determinations made by the trial court ( see Shon v. State of New York, 75 A.D.3d at 1036, 906 N.Y.S.2d 642; F & K Supply v. Willowbrook Dev. Co., 304 A.D.2d 918, 920, 759 N.Y.S.2d 194 [2003], lv. denied 1 N.Y.3d 502, 775 N.Y.S.2d 239, 807 N.E.2d 289 [2003] ).

Defendant contends that the weight of the evidence demonstrates that the parties did not agree to extend the written contract and that each post-2002 flight was governed by an independent agreement. An enforceable contract requires a definite agreement between two parties ( see Wild v. Hayes, 68 A.D.3d 1412, 1414, 891 N.Y.S.2d 199 [2009]; Follender v. Prior, 63 A.D.3d 1458, 1459, 881 N.Y.S.2d 238 [2009] ), which may be gleaned from the words and conduct of the parties ( see Brown Bros. Elec. Contrs. v. Beam Constr. Corp., 41 N.Y.2d 397, 399, 393 N.Y.S.2d 350, 361 N.E.2d 999 [1977]; Ahlstrom Mach. v. Associated Airfreight, 272 A.D.2d 739, 741, 708 N.Y.S.2d 497 [2000] ). Where parties continue to perform after a contract expires, the courts look to the conduct of the parties to determine whether the terms of the written contract continue to apply ( see New York Tel. Co. v. Jamestown Tel. Corp., 282 N.Y. 365, 372, 26 N.E.2d 295 [1940]; Monahan v. Lewis, 51 A.D.3d 1308, 1309-1310, 858 N.Y.S.2d 812 [2008] ).

Here, the contract provided for a "[g]uarantee of [250] flight time hours within six (6) months and the option to do [50] hours per month thereafter." The contract is silent as to who could exercise the option or the preconditions for doing so. Richards testified that, pursuant to the written provision, Moss orally agreed to provide at least 50 hours of flight time per month after the contract's initial six-month term expired. Richards further testified that defendant owed plaintiff approximately 81 hours of flight time on the initial six-month contract and agreed that any flight time in excess of 50 hours per month thereafter would be used to make up for the shortfall. Although Moss acknowledged that defendant was liable for any shortfall during the six-month term of the written contract, he denied any promise to provide 50 hours of flight time per month thereafter.

The parties' conduct supports Richards' testimony that they continued to operate pursuant to the terms of the written contract. For example, defendant continued to refer flights to plaintiff in substantially the same manner as under the original contract and reserved the same plane designated in that contract for essentially exclusive use by the Government. Although plaintiff sometimes chartered the plane to other clients, it did so only with the Government's permission. Likewise, Richards testified that plaintiff provided a different plane for the Government's use only at the Government's request or when the original plane was already in use or undergoing maintenance. Richards further testified that defendant continued to pay for a ground crew and staff to be on call at all times. In short, plaintiff held the aircraft aside for the Government's use at a discounted rate and neither party said or did anything that would repudiate an essential term of the written contract ( compare New York Tel. Co. v. Jamestown Tel. Corp., 282 N.Y. at 372, 26 N.E.2d 295).

Even if the written contract itself was not extended, this evidence that the parties continued to perform after its expiration in substantially the same manner as they had performed during the initial term of the contract supports Supreme Court's conclusion that the terms of the originalcontract continued to apply to the parties' subsequent agreement ( see Capital Med. Sys. v. Fuji Med. Sys., U.S.A., 239 A.D.2d 743, 745, 658 N.Y.S.2d 475 [1997]; Watts v. Columbia Artists Mgt., 188 A.D.2d 799, 801, 591 N.Y.S.2d 234 [1992]; compare Computerized Med. Imaging Equip. v. Diasonics Ultrasound, 303 A.D.2d 962, 963-964, 758 N.Y.S.2d 228 [2003] ), including the guaranteed 50-hour minimum commitment ( see Winkler v. Kingston Hous. Auth., 259 A.D.2d at 823, 686...