650 N.Y.S.2d 164 | N.Y. App. Div. | 1996
—Amended judgment, Supreme Court, New York County (Ira Gammerman, J.), entered April 2, 1996, which, inter alia, enjoined defendants from engaging in any conduct which discourages the use of plaintiff’s products, and order of the same court and Justice, entered August 8, 1996, which, inter alia, denied defendant PCS Health Systems’ motion to vacate the amended judgment, unanimously affirmed, without costs.
Based on the evidence, which demonstrated that defendant failed to include plaintiff’s products on various formulary lists and that defendant’s interventions had direct negative impacts
While plaintiff urges that the injunction should also cover all new health plans, the agreement unambiguously provides that such new plans would be covered by the agreement "only upon the mutual agreement of the parties”, of which there is no evidence.
Finally, as the Evaluator never specified which competitor of defendant had been offered more favorable pricing terms by plaintiff, or what those terms were, plaintiff was unable to decide, pursuant to the parties’ agreement, whether it would offer such terms to defendant. Nor is there evidence of bad faith on the part of plaintiff. Accordingly, defendant had no basis to terminate the agreement. Since the agreement was still binding on the parties, vacatur of the injunction was unwarranted.
We have considered the parties’ remaining arguments for affirmative relief and find them to be without merit. Concur— Milonas, J. P., Wallach, Kupferman, Ross and Williams, JJ.