Picotte Realty, Inc. v. Gallery of Homes, Inc. , 412 N.Y.S.2d 47 ( 1978 )

Mahoney, P. J., dissents and votes to reverse in the following memorandum. Mahoney, P. J. (dissenting).

I dissent. In my view, plaintiff has failed to establish the likelihood of its ultimate success on the merits and, accordingly, the order should be reversed. Pursuant to the express language of the agreement, defendant had the right to terminate the agreement immediately, by written notice, upon plaintiff’s breach of the agreement, and breach is defined as including plaintiff’s failure "to comply with any of the obligations required under paragraph 4” (emphasis added). Where the parties to a contract have agreed to a termination clause, the courts of this State have generally enforced it as written (see Shell Oil Co. v McGraw, 48 AD2d 220, app dsmd 40 NY2d 918; Greene Motors v Chrysler Motors Corp., 47 AD2d 743; Swartz v War Mem. Comm, of City of Rochester, 25 AD2d 90; Cycleway, Inc. v Kawasaki Motors Corp., U. S. A., 77 Misc 2d 829). Here, plaintiff concedes that it failed to make the payment for the first quarter of 1977 within the time period required by paragraph 4H of the agreement. Accordingly, pursuant to the express language of the agreement, which I find clear and unambiguous, defendant was entitled to terminate the agreement. While it is the law of this State that a breach of contract must be substantial to give cause for rescission (Clarke Contr. Co. v City of New York, 229 NY 413, 420), as noted above, termination clauses will generally be enforced as written, and the clause at issue does not require a material or substantial breach. To so require, as plaintiff suggests, would necessitate judicial revision of the agreement reached by the parties, which we should not do (see Morlee Sales Corp. v Manufacturers Trust Co., 9 NY2d 16). Next, I reject plaintiff’s contention that receipt of the commission reporting form is a condition precedent to plaintiff’s obligation to pay pursuant to paragraph 4H. The requirement that plaintiff make the payments appears absolute, and there is nothing in paragraph 4H which would suggest that the parties intended plaintiff’s obligation to be contingent upon receipt of the form (see 10 NY Jur, Contracts, §§ 251-252; 5 Williston, Contracts [3d ed], § 665). Finally, since defendant’s termination of the agreement was in accordance with the express terms of the agreement, plaintiff’s allegation that defendant acted in bad faith must be rejected (Shell Oil Co. v McGraw, supra; Division of Triple T Serv. v Mobil Oil Corp., 60 Misc 2d 720), and plaintiff has failed to allege facts sufficient to establish an unlawful tying arrangement in violation of section 340 of the General Business Law (see Siegel v Chicken Delight, 448 F2d 43, cert den 405 US 955). The order should be reversed.