The opinion of the court was delivered by: SWEET
Plaintiff Strapex Corporation ("Strapex") brought this action against defendants B. V. Metaverpa ("Metaverpa") and Leonard Brown ("Brown") alleging breach of contract, unjust enrichment, tortious interference with prospective economic advantage, and prima facie tort. On March 20, 1985 Strapex obtained an ex parte order of attachment and restraining order against Metaverpa. Strapex now moves in accordance with N.Y. CPLR 6211(b) to confirm the order of attachment and restraining order. For the reasons discussed below, the motion is denied.
Metaverpa is a corporation with its principal place of business in Maartensdijk, Holland, engaged in the business of manufacturing newspaper strapping machines. Strapex is a North Carolina corporation authorized to transact business in New York that, among other things, purchases strapping machines from Metaverpa and then sells and services the machines. Brown was employed by Strapex from 1973 until late 1984, and from 1981 until the time he left Strapex was responsible for maintaining Strapex's customer relationship with The New York Times. Since approximately 1974, Strapex and its corporate predecessors, Mid-States Packaging Systems and Weld-Loc Systems, Inc. (collectively, "Strapex") have been selling Metaverpa machines to The Times. On September 1, 1972 Metaverpa entered into an agreement with Strapex giving Strapex the exclusive right to distribute Metaverpa's model P-53 package binding machine in the United States. By its terms the agreement expired on September 1, 1980. The parties did not enter into any subsequent written agreement.
According to Strapex, in approximately October 1982 Strapex commenced a marketing plan, headed by Brown, designed to culminate in the sale of twenty to thirty strapping machines to The Times. In late 1982 Strapex purchased two model HSM-30 heat seal machines from Metaverpa and shipped them to The Times to use on a trial basis. According to Strapex, this marketing plan was undertaken with the knowledge, consent and encouragement of Metaverpa. During the next few months, Strapex worked with The Times and Metaverpa in an effort to modify the machines to meet The Times' requirements. In February 1983 the first two machines were removed and in May 1983 two additional Model HSM-30 machines, which included additional parts sold to Strapex by Metaverpa on the understanding that the parts would be resold to The TImes, were purchased by Strapex from Metaverpa and installed at The Times. These machines also failed to meet THe Times' requirements and were removed in October 1983.
In late February 1984 Strapex shipped two USM-65 ultrasonic machines purchased from Metaverpa to The TImes to commence a third trial term. These machines, which are more advanced than the older HSM models, use ultrasound to seAL bundles. According to Strapex, in May 1984 Strapex paid the expenses of Metaverpa employees to travel to new York to monitor the effectiveness of these machines. Metaverpa claims that it shipped the USM-65 machines to The Times on its own behalf in February of 1984, although it does not offer evidence to refute Strapex's submission of documents in support of its claims. Metaverpa also contends that its employees travelled to New York in May on Metaverpa's behalf and except for a small sum were not reimbursed by Strapex.
Strapex claims that in June of 1984, Brown and Paul Verhoef ("Verhoef"), Metaverpa's commercial manager, met with a representative of The Times who told them that The Times was completely satisfied with the operation of the machines. In August of 1984 Strapex sent a price quotation to The Times for the purchase of twenty Metaverpa machines at $27,500 per machine, totalling $550,000, including number of terms and conditions relating to the proposed sale. This record contains no evidence concerning the reaction of The TImes to this proposal. In early December of 1984, Brown resigned his position with Strapex. Shortly thereafter, Verhoef and Brown met with a representative of The TImes in New York. Subsequent to this meeting, Metaverpa obtained an order to sell twenty-eight USM-65 ultrasonic bundling machines to The Times.
In its action, Strapex claims that it had the exclusive right to sell Metaverpa machines to The New York Times and that with the help of Brown, Metaverpa breached its agreement to give Strapex exclusive rights and unjustifiably interferred with the relationship between Strapex and The TImes by usurping Strapex's order. It also contends that Metaverpa's actions were performed with deliberate intent to injure Strapex and that Metaverpa has been unjustly enriched at Strapex's expense.
N.Y.C.P.L.R. 6212(a) provides:
On a motion for an order of attachment, or for an order to confirm an order of attachment, the plaintiff shall show . . . that there is a cause of action, that it is probable that the plaintiff will succeed on the merits, that one or more grounds for attachment provided in section 6201 exists, and that the amount demanded from the defendant exceeds all counterclaims known to the plaintiff.
Strapex has successfully demonstrated that it has a cause of action. Furthermore, because Metaverpa is a foreign corporation, Strapex has met the requirements of § 6201(1). However, at this preliminary stage of the proof Strapex has not met its burden of establishing probable success on either its contract or its tort claims.
Strapex contends that by selling strapping machines to the New York Times Metaverpa has breached an agreement granting Strapex the exclusive right to sell Metaverpa machines to The Times. Strapex concedes that there is no evidence of any written contract granting Strapex these exclusive rights; the only written contract between the parties expired in 1980. However, Strapex asserts that the parties implicitly renewed that contract, and claims that the course of dealings between Strapex and Metaverpa is evidence of this implied agreement. In particular, Strapex suggests that Metaverpa's awareness of Strapex's efforts to market machines to The Times, and the degree to which Metaverpa aided ni these efforts by ...