OORAH, INC., DOING BUSINESS AS CUCUMBER COMMUNICATIONS, plf-ap, v. COVISTA COMMUNICATIONS, INC., def-res

3760-3761. OORAH, INC., DOING BUSINESS AS CUCUMBER COMMUNICATIONS, plf-ap, v. COVISTA COMMUNICATIONS, INC., def-res — Storch Amini PC, New York (Steven G. Storch of counsel), for ap — Kane Kessler, P.C., New York (Jeffrey H. Daichman of counsel), for res — Judgment, Supreme Court, New York County (Eileen Bransten, J.), entered September 1, 2016, awarding a sum of money to defendant, unanimously reversed, on the law, with costs, defendant's motion for summary judgment on its breach of contract counterclaim denied, and plaintiff's motion for summary judgment dismissing the counterclaim granted. Appeal from order, same court and Justice, entered on or about August 23, 2016, deciding the parties' motions, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

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3760-3761. OORAH, INC., DOING BUSINESS AS CUCUMBER COMMUNICATIONS, plf-ap, v. COVISTA COMMUNICATIONS, INC., def-res — Storch Amini PC, New York (Steven G. Storch of counsel), for ap — Kane Kessler, P.C., New York (Jeffrey H. Daichman of counsel), for res — Judgment, Supreme Court, New York County (Eileen Bransten, J.), entered September 1, 2016, awarding a sum of money to defendant, unanimously reversed, on the law, with costs, defendant’s motion for summary judgment on its breach of contract counterclaim denied, and plaintiff’s motion for summary judgment dismissing the counterclaim granted. Appeal from order, same court and Justice, entered on or about August 23, 2016, deciding the parties’ motions, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Defendant counterclaimed for breach of the provision of the parties’ “Reseller Agreement” that required plaintiff, as reseller of defendant’s telecommunications services, to purchase a minimum amount of services from defendant each month or pay for the shortfall. Contrary to the motion court’s determination, we conclude that the Reseller Agreement, executed in 2001, was superseded by the parties’ 2004 “Independent Authorized Master Agent Agreement” (Agent Agreement), which covers the same subject matter and contains a provision that conflicts with the provision in the Reseller Agreement that defendant claims was breached. Therefore, the counterclaim must be dismissed.

OORAH, INC., DOING BUSINESS AS CUCUMBER COMMUNICATIONS, plf-ap, v. COVISTA COMMUNICATIONS, INC., def-res

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