Summary
affirming summary judgment where claim for damages was "unduly speculative"
Summary of this case from Kinsey v. Cendant Corp.Opinion
3930.
Decided June 17, 2004.
Judgment, Supreme Court, New York County (Charles Edward Ramos, J.), entered February 4, 2004, which, upon the prior grant of defendants' motion for summary judgment, dismissed the complaint, unanimously affirmed, with costs.
Susman Godfrey, L.L.P., Houston, TX (Stephen D. Susman of counsel), for appellant.
Shearman Sterling LLP, New York (Stephen Fishbein of counsel), for respondents.
Before: Buckley, P.J., Nardelli, Andrias, Williams, Gonzalez, JJ.
The evidence conclusively established that, contrary to plaintiff's contention, defendants made sufficient efforts to sell advertising on plaintiff's website and provided incentives, motivation and encouragement to its sales force to sell said advertising in satisfaction of its contractual obligations. We note in this connection that the provision of the contract upon which plaintiff relies did not set forth objective criteria against which defendants' efforts could be measured ( see Timberline Dev., LLC v. Kronman, 263 A.D.2d 175, 178).
Plaintiff's cause of action to recover damages based on defendants' alleged failure to provide advertising equivalent in value to the value of the advertising credits exacted from plaintiff was properly dismissed since the credits themselves, which were negotiable by plaintiff only to defendants for advertising, had no cash value, and it is plain on this record that any claim by plaintiff for lost profits or sales resulting from the alleged overcharge would be unduly speculative ( see Lexington 360 Assocs. v. First Union Natl. Bank of N. Carolina, 234 A.D.2d 187, 190).
Summary judgment was also properly granted dismissing plaintiff's cause of action for promissory estoppel since the oral promises upon which the cause is premised were not clear and unambiguous and could not have been reasonably relied upon by plaintiff to its detriment ( see 401 Hotel, L.P. v. MTI/Image Group, Inc., 251 A.D.2d 125).
We have considered plaintiff's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.