V. Ponte and Sons, Inc. v. American Fibers International

635 N.Y.S.2d 193 | N.Y. App. Div. | 1995

—Order, Supreme Court, New York County (Charles Ramos, J.), entered on or about September 15, 1994, which, to the extent appealed from, denied defendants-appellants’ motion for leave to interpose counterclaims, unanimously affirmed, with costs.

The IAS Court did not err in concluding that the proposed counterclaims clearly lack merit (see, Wieder v Skala, 168 AD2d 355). The breach of contract claim is based on an alleged agreement that defendants attempt to piece together from several, separate writings, which, even considered cumulatively, do not satisfy the Statute of Frauds. The writings do not include all the essential items of the contract, and none of them bears the signature of a representative of plaintiff, the party sought to be charged (see, APS Food Sys. v Ward Foods, 70 AD2d 483, 486). The counterclaim based on promissory estoppel also fails, as there is no allegation or evidence of conduct of a kind that would support an estoppel, unequivocally referable to the venture (see, Bon Temps Agency v Towers Org., 187 AD2d 376, 376-377, Iv denied 82 NY2d 651). The counterclaim sounding in breach of fiduciary duty was properly rejected, as defendants have pleaded only an arm’s length business transaction without special circumstances which might give rise to a fiduciary relationship (see, Mobil Oil Corp. v Joshi, 202 AD2d 318). The counterclaim for unfair competition lacks the requisite elements of either a confidential relation between the parties or a valid agreement to refrain from the alleged unfair competition (see, American Can Co. v Grey Intercontinent, 3 AD2d 908). Concur — Ellerin, J. P., Rubin, Williams and Mazzarelli, JJ.