Opinion
2011-11-10
KOLMAR AMERICAS, INC., Plaintiff–Appellant,v.BIOVERSAL INC., etc., Defendant–Respondent.
Kelley Drye & Warren LLP, New York (James E. Nealon of counsel), for appellant.Fulbright & Jaworski L.L.P., New York (James H. Neale of counsel), for respondent.
Kelley Drye & Warren LLP, New York (James E. Nealon of counsel), for appellant.Fulbright & Jaworski L.L.P., New York (James H. Neale of counsel), for respondent.
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered on or about April 13, 2010, which granted defendant's motion for partial summary judgment on its third counterclaim, unanimously affirmed, without costs.
Plaintiff's attempt to insert ambiguity into the applicable tax clause contained in the General Terms and Conditions (GTC) of the agreement between the parties which required plaintiff to pay defendant all taxes “paid or incurred by [defendant] directly or indirectly with respect to the product sold,” is unpersuasive. “A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” ( Excel Graphics Tech. v. CFG/AGSCB, 1 A.D.3d 65, 69, 767 N.Y.S.2d 99 [2003], lv. dismissed 2 N.Y.3d 794, 781 N.Y.S.2d 292, 814 N.E.2d 464 [2004] ). Contrary to plaintiff's argument, the language employed in the contract should not be modified by, or read together with, the “Title and Risk of Loss” provision. Nor should the term “indirectly” be read narrowly as such a reading would render the counterpart term covering taxes paid “directly,” meaningless, and run afoul of the “cardinal rule of construction that a court adopt an interpretation that renders no portion of the contract meaningless” ( Diamond Castle Partners v. IAC/Interactive Corp., 82 A.D.3d 421, 422, 918 N.Y.S.2d 73 [2011] ).
Article 2 of the UCC does not authorize the introduction of parole evidence to vary the plain meaning of the GTC tax clause. Extrinsic evidence does not merely “explain” or “supplement” a contractual term within the meaning of UCC 2–202 when the purported explanation or supplement actually contradicts the unambiguous contractual terms ( see UCC 2–202; Intershoe, Inc. v. Bankers Trust Co., 77 N.Y.2d 517, 523, 569 N.Y.S.2d 333, 571 N.E.2d 641 [1991] ).
The motion court's grant of partial summary judgment while directing that an inquest be held after discovery is completed was a provident exercise of its “wide discretion” ( see Robert Stigwood Org. v. Devon Co., 44 N.Y.2d 922, 923–24, 408 N.Y.S.2d 5, 379 N.E.2d 1136 [1978] ). Pursuant to the motion court's order, at the inquest, defendant will bear the burden of proving its damages, i.e., the amount it paid or incurred, directly or indirectly, with respect to Florida fuel taxes in connection with the subject contract.
We have considered plaintiff's remaining arguments and find them unavailing.