CLEAN AIR OPTIONS, LLC plf-res, v. HUMANSCALE CORPORATION, def-ap

1767. CLEAN AIR OPTIONS, LLC plf-res, v. HUMANSCALE CORPORATION, def-ap — Cole Schotz P.C., New York (Arianna Frankl of counsel), for ap — Agoglia, Holland & Agoglia, P.C., Jericho (Craig D. Holland of counsel), for res — Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered April 12, 2016, which, to the extent appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing the breach of contract claim, unanimously modified, on the law, to grant so much of the motion as seeks to dismiss the claim for lost profits arising from defendant's alleged failure to provide plaintiffs with products for resale, interest at the contractual rate, and damages arising from defendant's sale of products to a third-party, and otherwise affirmed, without costs.

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1767. CLEAN AIR OPTIONS, LLC plf-res, v. HUMANSCALE CORPORATION, def-ap — Cole Schotz P.C., New York (Arianna Frankl of counsel), for ap — Agoglia, Holland & Agoglia, P.C., Jericho (Craig D. Holland of counsel), for res — Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered April 12, 2016, which, to the extent appealed from as limited by the briefs, denied defendant’s motion for summary judgment dismissing the breach of contract claim, unanimously modified, on the law, to grant so much of the motion as seeks to dismiss the claim for lost profits arising from defendant’s alleged failure to provide plaintiffs with products for resale, interest at the contractual rate, and damages arising from defendant’s sale of products to a third-party, and otherwise affirmed, without costs.

The parties’ agreements, pursuant to which plaintiffs granted defendant a license to manufacture and sell products incorporating certain air purification technology for use in consumer products, contain no requirement that defendant supply plaintiffs with products for resale. Neither the 2006 agreement nor the 2009 amendment contains language obligating defendants to supply plaintiffs with any products. Nor did the 2007 agreement obligate defendant to sell products to plaintiffs. It provided defendant with the “right” to sell products to plaintiff Clean Air Options for resale, and supplied a formula for calculating the price for those products, but it further provided that in the event that defendant was unable to supply the requested products at a competitive price and in a timely manner, Clean Air could purchase the product from another manufacturer (rather than declare a breach and seek damages from defendant).

CLEAN AIR OPTIONS, LLC plf-res, v. HUMANSCALE CORPORATION, def-ap

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