New York Supreme and/or Appellate Courts Appellate Division, First Department
March 19, 2013
BREAA LLC, PLAINTIFF-RESPONDENT, --
BREAA LLC v Passarelli
Decided on March 19, 2013
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Andrias, J.P., Friedman, DeGrasse, Freedman, Abdus-Salaam, JJ.
Order, Supreme Court, New York County (Ellen Coin, J.), entered September 17, 2012, which denied defendant's motion to dismiss the complaint, unanimously reversed, on the law, with costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
The agreement between the parties provided that plaintiff's officer-members would be defendant's exclusive agents to represent him in finding a buyer for his valuable comic book, but it did not give them the exclusive right to sell (see Far Realty Assoc. Inc. v RKO Del. Corp., 34 AD3d 261 [1st Dept 2006]). Thus, since no commission was due to plaintiff if defendant independently procured a buyer and sold the comic book during the exclusive agency period, as the complaint alleges, plaintiff's breach of contract claim should have been dismissed. In addition, the second cause of action for breach of the implied covenant of good faith and fair dealing should have been dismissed since such a claim may not be used as a substitute for a nonviable claim of breach of contract (see Murphy v American Home Prods. Corp., 58 NY2d 293, 304 ).
In light of the foregoing, we need not reach defendant's remaining arguments.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 19, 2013
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