J & J Air Freight Trucking Co. v. Danzas Corp.

Appellate Division of the Supreme Court of the State of New York

Mar 17, 2003

Versions:303 A.D.2d 559

756 N.Y.S.2d 468

—In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Glover, J.), dated June 26, 2002, which denied its motion for summary judgment on the issue of liability on the first cause of action. Justice Cozier has been substituted for the late Justice O’Brien (see 22 NYCRR 670.1 [c]).

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was for summary judgment on the issue of liability on the first cause of action against the defendant Danzas Corporation and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiff.

The plaintiffs motion for summary judgment on the issue of liability on the first cause of action alleging breach of contract *560against the defendants was supported, inter alia, by a copy of the contract pursuant to which it was to provide certain air freight warehousing and trucking services to the defendant Danzas Corporation and its wholly-owned subsidiaries, for the specified term of March 1, 1997, through February 28, 2003, and receive certain minimum monthly payments, and a copy of an e-mail from Danzas Corporation stating that, as of November 1, 2001, it would “not route any freight through [the plaintiff] anylonger [sic].” In response to the motion, Danzas Corporation conceded both the existence of the contract, and its breach thereof due to the integration of its air freight operations with those of another corporation, with which it became affiliated. Danzas Corporation took issue, however, with the plaintiffs interpretation of certain provisions of the contract pertaining to the extent of any alleged breach of the agreement and the identities of the breaching parties.

The plaintiff made a prima facie showing of entitlement to summary judgment on the issue of liability on its cause of action alleging breach of contract against Danzas Corporation (see CPLR 3212 [b]). To the extent that Danzas Corporation raised issues of fact in opposition to the motion, such issues relate only to the amount of damages to which the plaintiff will be entitled.

Those branches of the plaintiffs motion which were for summary judgment against the defendants other than Danzas Corporation were properly denied. The plaintiff failed to establish that these defendants were wholly-owned subsidiaries of Danzas Corporation so as to be bound by the contract. Ritter, J.P., Feuerstein, Luciano and Cozier, JJ., concur.