Opinion
2003-03232.
Decided June 14, 2004.
In an action to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Emerson, J.), entered March 4, 2003, dismissing the complaint.
Cohen Warren, P.C., Smithtown, N.Y. (Barry L. Warren of counsel), for appellant.
Smith, Finkelstein, Lundberg, Isler Yakaboski, LLP, Riverhead, N.Y. (Gair G. Betts of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, ROBERT W. SCHMIDT, STEVEN W. FISHER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
Contrary to the plaintiff's contention, it was only an incidental beneficiary under the agreement at issue ( see State of California Pub. Employees' Retirement Sys. v. Shearman Sterling, 95 N.Y.2d 427; Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 66 N.Y.2d 38). Therefore, it could not maintain a third-party beneficiary claim against the defendant under the agreement ( see State of California Pub. Employees' Retirement Sys. v. Shearman Sterling, supra; Fenton v. Fenton, 253 A.D.2d 844).
The plaintiff's remaining contention is without merit.
SANTUCCI, J.P., S. MILLER, SCHMIDT and FISHER, JJ., concur.