OFFICE OF STEPHEN F. SZYMONIAK, WILLIAMSVILLE (STEPHEN F.
SZYMONIAK OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
BARCLAY DAMON, LLP, BUFFALO (CHARLES VON SIMSON OF COUNSEL),
PRESENT: WHALEN, P.J., LINDLEY, NEMOYER, CURRAN, AND
from an order and judgment (one paper) of the Supreme Court,
Erie County (Timothy J. Walker, A.J.), entered October 1,
2015. The order and judgment, insofar as appealed from,
granted that part of the motion of defendant Ross M. Baigent
for summary judgment dismissing plaintiffs' causes of
action against him for breach of contract and tortious
interference with contract, denied that part of the cross
motion of plaintiffs for summary judgment against defendant
Ross M. Baigent and denied as moot that part of the cross
motion of plaintiffs to preclude defendant Ross M. Baigent
from offering any evidence at trial.
hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.
In this breach of contract action, plaintiffs appeal from
those parts of an order and judgment that granted that part
of the motion of defendant Ross M. Baigent seeking summary
judgment dismissing the causes of action for breach of
contract and tortious interference with contract against him;
denied that part of plaintiffs' cross motion seeking
summary judgment on the complaint against Baigent; and denied
as moot that part of plaintiffs' cross motion seeking to
preclude Baigent from offering evidence at trial on the
ground that Baigent failed to comply with discovery demands.
We note at the outset that plaintiffs have abandoned any
contention that Supreme Court erred in dismissing the cause
of action for tortious interference with a contract against
Baigent by failing to address it in their brief (see
Ciesinski v Town of Aurora, 202 A.D.2d 984, 984).
Baigent, and defendants Rory O'Connor and Hugh Collins,
now deceased, were founding members of Cataclean Americas,
LLC (CAL), an entity formed pursuant to an operating
agreement between those individuals to act as the exclusive
North and Central American distributor for a product called
Cataclean. Cataclean was invented by Collins, who held
Cataclean's patent. System Products UK, Ltd. (SPUK), an
entity owned by Collins and Baigent, was Collins' agent
for all matters related to Cataclean and the associated
intellectual property. Cataclean's trademark was held by
Rosehoff, Ltd. (Rosehoff), another entity owned by Collins
CAL's formation, SPUK and CAL entered an agreement
whereby CAL was licensed to distribute Cataclean. Although
the licensing agreement expressly prohibited CAL from
assigning its rights, CAL purported to assign its
distribution rights to Prestolite Performance (Prestolite).
Rosehoff and SPUK commenced a copyright infringement action
in federal court against Prestolite, CAL, and plaintiffs, and
Prestolite thereafter terminated its contractual relationship
with CAL and allegedly entered into a contractual
relationship with Rosehoff. Plaintiffs then commenced this
action seeking, inter alia, damages for alleged breach of the
CAL operating agreement by Baigent and Collins. Collins
defaulted, and it was later discovered that he had died. The
remaining defendants other than Baigent have left this action
as the result of a settlement agreement.
conclude that the court properly granted that part of
Baigent's motion seeking summary judgment dismissing the
cause of action for breach of the operating agreement and
denied that part of plaintiffs' cross motion for summary
judgment on that cause of action. The amended complaint
alleges that Baigent breached the CAL operating agreement by
entering into a business relationship with Prestolite, which
plaintiffs contend was an opportunity usurped from CAL. The
pertinent contractual provision allows members of CAL, such
as Baigent, to compete with CAL, but requires an accounting
and the imposition of a trust for any proceeds members
receive through their use of "Company Property, "
including information developed exclusively for CAL and
opportunities offered to CAL. The record establishes,
however, that the Prestolite line of business was not
CAL's company property, inasmuch as CAL had no right to
assign to Prestolite any rights with respect to Cataclean or
its distribution. Thus, Baigent established as a matter of
law that he did not breach CAL's operating agreement
because his business relationship with Prestolite did not
amount to improper competition with CAL, and plaintiffs
failed to raise a triable issue of fact (see Zuckerman v
City of New York, 49 N.Y.2d 557, 562), let alone
demonstrate their own entitlement to judgment as a matter of
reject plaintiffs' contention that summary judgment was
premature because further discovery was needed. Plaintiffs
failed "to demonstrate that discovery might lead to
relevant evidence or that the facts essential to justify
opposition to the motion were exclusively within the
knowledge and control of the movant" (Buto v Town of
Smithtown, 121 A.D.3d 829, 830 [internal quotation marks
omitted]; see CPLR 3212 [f]), and the " [m]ere
hope that somehow the plaintiff[s] will uncover evidence that
will prove a case' " is insufficient for denial of
the motion (Mackey v Sangani, 238 A.D.2d 919, 920).
Although plaintiffs contend that Baigent has refused to
produce documents, no such refusal appears in the record, and
plaintiffs, as the appellants, must suffer the consequences
of proceeding on an incomplete record (see Matter of
Rodriguez v Ward, 43 A.D.3d 640, 641).
reject plaintiffs' contention that they are entitled to
summary judgment on the ground that Baigent should be
collaterally estopped from defending himself in the action by
virtue of the default of Baigent's deceased codefendant,
i.e., Collins. It is well settled that a "judgment
obtained... against [a] defaulting defendant is not entitled
to collateral estoppel effect against the nondefaulting
defendants who would otherwise be denied a full and fair
opportunity to litigate issues of liability" (Holt v
Holt, 262 A.D.2d 530, 530; see Chambers v City of
New York, 309 A.D.2d 81, 85-86; see also Kaufman v
Eli Lilly & Co., 65 N.Y.2d 449, 456-457).
light of our determination, we further conclude that the
court properly denied as moot that part of plaintiffs'
cross motion seeking to preclude Baigent from offering
evidence at trial on ...