Order, Supreme Court, New York County (Barry Cozier, J.), entered December 8, 2000, brought up for review pursuant to CPLR 5517 (b) by cross appeals from an order, same court and Justice, entered on or about March 10, 2000, which, upon reargument, denied defendant’s motion for summary judgment dismissing the first, second and sixth causes of action and granted the motion with respect to the third, fourth and fifth causes of action, unanimously modified, on the law, to the extent appealed from as limited by the briefs, by granting the defense motion with respect to all causes of action and dismissing the complaint and, except as so modified, affirmed, without costs. Motion seeking an order to dismiss, or permitting plaintiff to withdraw, so much of the cross appeal challenging the dismissal of the third and sixth causes of action denied.
Defendant Morgan Stanley Dean Witter & Co. appeals from so much of Supreme Court’s order as denied its motion to dismiss plaintiffs first, second and sixth causes of aсtion. Plaintiff SAA-A, Inc. cross-appeals from so much of the order as granted defendant’s motion to dismiss the third, fourth and fifth causes of action. The court’s dismissal of the seventh and eighth causes of action is not disputed.
Pursuant to a written contract dated July 3, 1995, plaintiff, doing business as Global Information Technologies, agreed with defendant Morgan Stanley to develop and implement a training program, designated “NT for Unix Administrators,” together with related software and reference materials (collectively, courseware). The governing fee schedule (Schedule A) sets plaintiff consultant’s fee at “$2,000/day inclusive of all costs and materials.” The contract contains a merger clause providing that it “cannot be сhanged unless mutually agreed upon in writing by both parties.” Under the description of plaintiffs duties, the contract recites: “The parties may agree on the provision of additional training services and courseware
Plaintiff dоes not contend that any additional schedules were executed for additional training services. Rather it alleges: 1) that defendant’s training manager orally represented thаt Morgan Stanley would compensate plaintiff for the development costs of the training program in the amount of $500,000; 2) that defendant is liable in quantum meruit for the reasonable value of its work in such amount; 3) that it sustained damages by reason of defendant’s failure to implement the program, as agreed, in the amount of $2,192,000; 4) that defendant’s training manager represented that Morgan Stanley would pay the cost of development; 5) that defendant’s agents insisted plaintiff devote its entire corporate resources to development of the program, as a result of which plaintiff was required to forego other business opportunities, sustaining injury in the amount of $6,000,000; and 6) that defendant illegally appropriated course materials produced by Microsoft Corp. for use in place of the materials to have been furnished by plaintiff, as a result of which it sustained damages of at least $1,000.
Plаintiff has adopted a familiar strategy of stating a cause of action for breach of contract in numerous guises, presumably in the hope that a court will find merit to at leаst one of its disparate theories of relief (see, McMahan & Co. v Bass,
The first cause of action must be dismissed. The parol evidence rule bars admission of antecedent or contemporaneous oral representations to vary or add to the terms of a written agreement (see, Unisys Corp. v Hercules Inc.,
The second cause of action is also deficient. As this Court has stated, “where there is an еxpress contract no recovery can be had on a theory of implied contract” (Hohenberg Co. v Iwai New York,
Whilе it purports to seek a greater amount (based on failure of implementation of the training program rather than cost of its development), the third cause of actiоn is predicated on the same occurrences and transactions as the first and is therefore
The basis of plaintiffs sixth cause of action is not entirely clear. It is apparently predicated on an unspecified and unrelated agreemеnt to provide instruction to defendant’s employees under the Microsoft System Engineers training program. It asserts that defendant substituted a “bootlegged version of the * * * copyrighted [Microsoft] courseware” for the official training manual it was required to purchase from plaintiff. However, the only agreement between the parties is the Training Services Agreement contained in the record. It states simply, “Courseware to be Provided: Participant manuals and software as needed for courses.” The contract imposes no obligation to utilize plaintiffs instructors to train any particular number of employees or to continue any training program for a prescribed duration. To the contrary, defеndant is expressly afforded the option to terminate plaintiffs services at any time and for any or no reason. Thus, whatever factors may be said to have contributed to dеfendant’s decision, discontinuance of the use of plaintiffs instructors to conduct the Microsoft System Engineers training course was in accordance with the terms of the contrаct. Plaintiff cannot therefore recover for lost sales resulting from defendant’s subsequent substitution of alternative course materials.
Lastly, there is no merit to plaintiffs effort to limit the scope of review by way of a motion to withdraw so much of its cross appeal as challenged the dismissal of the third and sixth causes of action, which were reinstated by Suрreme Court upon reargument subsequent to perfection of the appeal. CPLR 5517 (a) (1) provides that an appeal is “not * * * affected” by a subsequent order upon reargument, and CPLR 5517 (b) empowers the Court to review the subsequent order where it is appealable as of right. Accordingly, defendant’s motion is denied. Concur — Rosenberger, J. P., Tom, Ellerin, Rubin and Buckley, JJ.