Cushman & Wakefield, Inc. v American Mgt. Assn. Intl., Inc.
2004 NY Slip Op 04839 [8 AD3d 67]
June 10, 2004
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, August 25, 2004


Cushman & Wakefield, Inc., Appellant,
v
American Management Association International, Inc., Respondent.

[*1]

Order, Supreme Court, New York County (Herman Cahn, J.), entered November 6, 2003, which, inter alia, granted defendant's motion to dismiss the complaint, unanimously affirmed, with costs.

The intention of the parties was fully determinable from the language of the subject agreement and the amendment thereto, and the agreement was unambiguous (see Kass v Kass, 91 NY2d 554, 566 [1998]; Elletson v Bonded Insulation Co., 272 AD2d 825, 827 [2000]) in its failure to obligate plaintiff to use trade credits acquired under a different contract between different parties (see Schonfeld v Thompson, 243 AD2d 343 [1997]). Plaintiff's reliance upon the implied covenant of good faith and fair dealing arising out of the subject contract is unavailing inasmuch as the covenant, if construed as broadly as plaintiff proposes, would effectively annul other express terms of the contract and create contractual rights independent of the contract (see Fesseha v TD Waterhouse Inv. Servs., 305 AD2d 268 [2003]). Concur—Buckley, P.J., Lerner, Friedman, Marlow and Sweeny, JJ.