Spencer T. Malysiak Law Corp., Roseville, CA (Spencer T.
Malysiak of the bar of the State of California, admitted pro
hac vice, of counsel), for appellant.
McGuireWoods LLP, New York (Michael L. Simes of counsel), for
Acosta, P.J., Richter, Feinman, Webber, Kahn, JJ.
Supreme Court, New York County (Saliann Scarpulla, J.),
entered August 30, 2016, which, to the extent appealed from,
granted defendants' motion to dismiss the amended
complaint, unanimously affirmed, with costs.
a distributor of petroleum products, entered into a business
relationship in early 2008 with defendant petroleum
suppliers. Plaintiff alleges that the parties operated under
an oral "partnership/strategic partnership" for
some months and then documented certain aspects of the
relationship in a May 2008 Product Services Agreement (PSA).
After the PSA was executed, and through December 2009,
defendants allegedly charged staggering interest and profit
sharing fees never previously negotiated, to compensate for
the undisclosed loss of their competitive market advantage
vis-a-vis Asian oil, which plaintiff did not learn about
until February 2012. The interest and fees allegedly worsened
plaintiff's position with its lender, prevented it from
finding alternative financing, and left it with no choice but
to sell its company as soon as possible, to a buyer who paid
$21 million less than its value.
2012, plaintiff commenced an action against defendants in
California federal court. The action was dismissed based on
the PSA's forum selection clause designating New York
courts as the exclusive forum, and the dismissal was affirmed
by the circuit court of appeals on March 23, 2015. Plaintiff
commenced this action on April 20, 2015.
breach of partnership/strategic partnership, breach of
implied covenant of good faith and fair dealing, breach of
fiduciary duty, and fraud claims, which arose under the PSA,
are time-barred pursuant to the PSA's two-year
limitations provision. These claims accrued, at the latest,
in February 2012, when plaintiff alleges that it discovered
them. While the California action was timely commenced, the
tolling provision of CPLR 205(a) does not avail plaintiff,
because an out-of-state action is not a "prior
action" within the meaning of that provision (Guzy v
New York City, 129 A.D.3d 614');">129 A.D.3d 614 [1st Dept 2015];
Midwest Goldbuyers, Inc. v Brink's Global Servs. USA,
Inc., 120 A.D.3d 1150');">120 A.D.3d 1150 [1st Dept 2014], lv
dismissed 26 N.Y.3d 1078');">26 N.Y.3d 1078 ; Baker v Commercial
Travelers Mut. Acc. Assn. of Am., 3 A.D.2d 265, 266 [4th
Dept 1957], appeal dismissed 4 N.Y.2d 828');">4 N.Y.2d 828 ).
intentional interference with prospective economic advantage
claim, which did not arise under the PSA, is also
time-barred, because it accrued, at the latest, in December
2009, and plaintiff did not commence this action until well
beyond the expiration of the applicable three-year
limitations period (see CPLR 214; Susman v
Commerzbank Capital Mkts. Corp., 95 A.D.3d 589, 590 [1st
Dept 2012], lv denied 19 N.Y.3d 810');">19 N.Y.3d 810 ).
breach of partnership/strategic partnership and breach of
fiduciary duty claims fail to state a cause of action and are
belied by documentary evidence. Both claims are premised on
the existence of a partnership. However, the PSA expressly
disclaimed a partnership relationship between the parties. As
to the breach of fiduciary duty claim, plaintiff alleges an
arm's-length transaction and no special circumstances
that might give rise to a fiduciary relationship between the
parties (see V. Ponte & Sons v American Fibers
Intl., 222 A.D.2d 271');">222 A.D.2d 271 [1st Dept 1995]). The breach of
implied covenant of good faith and fair dealing claim is
duplicative of the breach of partnership claim (see Amcan
Holdings, Inc. v Canadian Imperial Bank of Commerce, 70
A.D.3d 423, 426 [1st Dept 2010], lv denied 15 N.Y.3d
fraud claim fails because it is based on the allegation that
defendants did not intend to perform as promised (see
Goldstein v CIBC World Mkts. Corp., 6 A.D.3d 295, 296
[1st Dept 2004]; DePinto v Ashley Scott, Inc., 222
A.D.2d 288 [1st Dept 1995]). The intentional interference
with prospective economic relations claim fails to allege
that defendants' actions were motivated solely by malice
(see Matter of Entertainment Partners Group v Davis,
198 A.D.2d 63');">198 A.D.2d 63 [1st Dept 1993]).
the clear, expansive terms of the PSA's integration
clause, plaintiff's efforts to avoid the contract's
two-year limitations provision or other terms on the basis of
a pre-PSA oral partnership/strategic partnership are
unavailing. To the ...