The following papers were read on Defendant's motion for summary judgment:

Notice of Motion dated October 24, 2003;

Affidavit of Devin Buckley sworn to on October 23, 2003;

Affirmation of Jonathan Moskin, Esq. dated October 24, 2003, corrected October 27, 2003;

Affirmation of Victor Balancia, Esq. dated October 17, 2003;

Defendants Memorandum of Law;

Affidavit of Donald B. Feinsod sworn to on November 11, 2003;

Plaintiff's Memorandum of Law;

Defendant's Reply Memorandum of Law.

Defendant Stiefel Laboratories, Inc. moves for summary judgment, pursuant to CPLR 3212, dismissing the Plaintiff's complaint, and for an order striking certain reply papers filed by the Plaintiff in his separately noticed motion to disqualify Pennie & Edmonds, LLP as trial counsel for the movant.

BACKGROUND

In September, 2000, Defendant Stiefel Laboratories, Inc. ("Stiefel"), a cosmetics company, was intent upon marketing a topical acne medication. The medication was the subject [*2]of several patents owned by non-party Dermik Laboratories, Inc. ("Dermik"), a competitor of Stiefel's.

Although Dermik owned certain patents relating to the medication, Stiefel learned that the same product had apparently been prescribed by the Plaintiff, Donald B. Feinsod, M.D. ("Feinsod"), for some years prior to the issuance of Dermik's patents.

The information and practical experience developed by Dr. Feinsod in prescribing the medication was potentially valuable to Stiefel since Feinsod's public use of the medication, could be utilized by Stiefel to invalidate Dermik's patents and/or defend against a possible patent infringement claim.

Stiefel's representatives met with Feinsod, and in September 2000, the parties entered into a "Letter Agreement" under which Feinsod agreed to cooperate with and assist Stiefel in connection with the marketing of the product.

Pursuant to the agreement, Feinsod was to search for, and deliver, to Stiefel's attorneys, all original records and documents in his possession pertaining to his treatment with the subject medication (Agreement ¶¶ 1-3). Feinsod further agreed to provide a so-called "declaration under oath setting forth his recollections regarding" his treatment with the subject medication (Agreement ¶ 2).

Stiefel agreed to compensate Feinsod for his services by paying him "a royalty equal to one-quarter of one percent (0.25%) of its net sales for two years following the launch of the product (Agreement ¶ 8[a]).

The agreement also provides for an enhanced measure of compensation equal to 1% of Stiefel's net sales (for a period of four years) but only if Feinsod gave "oral or written testimony, either in depositions, discovery proceedings, or before any court, judicial or administrative body, in any legal action brought by or against Stiefel" [regarding the stated Dermik patents] (Agreement ¶ 8[b]).

Paragraph 12 states that the agreement "sets forth the entire understanding of Stiefel and Dr. Feinsod regarding its subject matter and supercedes any and all prior communications between them, whether written or oral." Moreover, the same paragraph provides that the agreement "may be modified or amended only in a written document executed by both parties" and stipulates that the contract was to be governed by the "internal substantive laws of the State of Florida."

According to Stiefel's general counsel, after Feinsod executed the declaration contemplated by the Letter Agreement, no legal proceeding with respect to the medication or the involving of the Dermik patents was ever initiated. Instead, Dermik and Stiefel resolved any potential dispute by entering into "cross-licensing" agreements in connection with the patents.

In March and August of 2003, and after the licensing agreements were executed, Stiefel attempted to pay Feinsod a royalty in the amount of one quarter percent, but Feinsod rejected the offer, claiming that payment should be calculated at the 1% rate.

After this demand was rejected, Feinsod commenced the within action against Stiefel, seeking an accounting and recovery predicated upon the 1% rate of royalty compensation (Cmplt., ¶¶ 9, 12, 14).

In sum, and as amplified by his present submissions, Feinsod contends that the term "legal action" is ambiguous and, in any event, broad enough to encompass the activity which allegedly ensued between Stiefel and Dermik prior to the execution of the cross-licensing [*3]agreements. Feinsod claims that his assistance was indispensable in persuading Dermik to enter into the cross-licensing agreements, and that the negotiations between counsel and the corporate parties constituted "legal action" within the meaning of the Letter Agreement.

Additionally, Feinsod asserts that a Mr.Victor Balancia a partner with Stiefel's present litigation counsel, Pennie & Edmonds, LLP not only provided him with legal advice, but allegedly assured him that his sworn declaration "would be the equivalent of 'testimony' in the claims against Dermik, and that by executing that Declaration, we would be triggering the increased payment due" * * * pursuant to the Letter Agreement".

Mr. Balancia has submitted an affirmation denying Dr. Feinsod's allegations and further observing that Feinsod was represented by his own counsel during the negotiations with Stiefel. The foregoing allegation is the subject of a separate motion to disqualify Pennie & Edmonds as counsel for Stiefel.

With respect to the instant motion, Stiefel moves for summary judgment dismissing the complaint, arguing that the language of the Letter Agreement is clear and precludes any recovery at the 1% royalty rate upon the facts presented. The Court agrees.

DISCUSSION

This matter is before the Commercial Division of this Court which is governed by published Part Rules. Effective January 1, 2003, Rule 19-a was added. Rule 19-a requires that on summary judgment motions the movant must file a Statement of Material Facts to enable the Court to identify triable issue of fact. Subparagraph i of 19-a provides that the "[f]ailure to submit such a statement may constitute grounds for denial of the motion," while subparagraph iii states that the failure to controvert those material facts identified by the movant "will be deemed to be admitted for the purposes of the motion. . ." Defendant complied. Plaintiff did not.

Although no state court has passed on the efficacy of Rule 19-a, it is analogous to local federal rule 56.1 which has been the subject of much litigation. See, e.g. Nas Electronics, Inc. v. Transtech Electronics PTE Ltd., 262 F. Supp. 2d 134 (SDNY 2003) (movant's failure to comply with rule 56.1 is an independent ground to deny summary judgment); and Kraft Foods North America, Inc. v. Rockland Co. Dept. Of Weights & Measures, 203 WL 554796 (SDNY 2003) (the failure to respond to movant's 56.1 statement warrants finding the statement to be uncontroverted). Thus, for the purpose of this motion, the Court accepts all statements of fact set forth in Defendant's 19-a Statement to be true. See, Holtz v. Rockefeller & Co., Inc., 258 F. 3d 62 (2nd Cir. 2001); and Millus v. D'Angelo, 224 F. 3d 137 (2nd Cir. 2000).

Florida Courts interpret the provisions of a contract "based on the fundamental rule of construction * * * [that] '[c]ontract language must be given its plain meaning' " and construed " 'harmoniously in order to give effect to all portions thereof '." Waksman Ent., Inc. v. Oregon Properties, Inc., 2003 WL 22187073,*4 (Fla. 2d Dist. Ct. App.) quoting from, Interfirst Fed. Sav. Bank v. Burke, 672 So.2d 90, 92 (Fla. 2nd Dist. Ct. App. 1996), and, City of Homestead v. Johnson, 760 So.2d 80, 85 (Fla. Sup. Ct. 2000). See also, Feldman v. Kritch, 824 So.2d 274, 277 (Fla. 4th Dist. Ct. App. 2002); and Dickerson Florida Inc. v. McPeek, 651 So.2d 186, 187 (Fla. 4th Dist. Ct. App. 1995). Moreover, "[a]bsent any evidence that the parties intended to endow a special meaning in the terms used in the agreement, the unambiguous language is to be given a realistic interpretation based on the plain, everyday meaning conveyed by the words." McIlmoil v. McIlmoil, 784 So.2d 557, 562 (Fla. 1st Dist. Ct. App. 2001).

Further, when contractual language is clear, "the parties' intent must be discerned from the four corners of the document." (Dows v. Nike, Inc., 846 So.2d 595, 601 [Fla. 4th Dist. Ct. [*4]App. 2003]; Burns v. Barfield, 732 So.2d 1202, 1205 [Fla. 4th Dist. Ct. App. 1999]; and Barakat v. Broward County Housing Auth., 771 So.2d 1193, 1194 [Fla. 4th Dist. Ct. App. 2000]), and "a subsequent interpretation in conflict with the clear meaning cannot be given effect." Winn-Dixie Stores, Inc. v. 99 Cent Stuff-Trail Plaza, LLC, 811 So.2d 719, 722 (Fla. 3rd Dist. Ct. App. 2002).

Reviewing the record in conformity with these principles, the Court concludes that Stiefel has established its prima facie entitlement to judgment as a matter of law. The Plaintiff's opposing submissions fail to generate triable issues of fact with respect to his claim of entitlement to the enhanced, 1% royalty rate.

The provisions of the Letter Agreement, which govern Feinsod's compensation, are unambiguous and provide for two distinct payment alternatives.

Pursuant to paragraph 8 (a), Feinsod was to receive a one quarter percent royalty for a two-year period,"in consideration of" providing the information and assistance enumerated in the preceding sections of the agreement; i.e., the sworn declaration, pertinent original records, and certain patient, pharmacist and physician information involving the subject medication (Agreement, ¶¶ 1-4).

However, the increased, 1% rate to which the Plaintiff claims entitlement, is payable only upon the occurrence of a specific and separately defined contingency; namely, that Feinsod first "gives oral or written testimony, either in depositions, discovery proceedings, or before any court, judicial or administrative body, in a legal action brought by or against Stiefel, regarding" specified patents (Agreement, ¶ 8[b]). It is undisputed that there was no formal legal action or administrative proceeding commenced by or against Stiefel; nor did Feinsod give "oral or written testimony" before any court or administrative body.

Feinsod's contention that his declaration constitutes the functional equivalent of testimony in an action or proceeding, as defined in paragraph 8 (b), is unpersuasive. The declaration was one of several documents and/or services Feinsod had obligated himself to supply in order to establish compliance with the agreement and earn the quarter percent royalty provided for in paragraph 8 (a) (Agreement, ¶¶ 2-4). It is contrary to the language and logic of the agreement to conclude that the parties intended to provide enhanced compensation upon the execution of a document Feinsod was already duty-bound to produce.

The Court also disagrees with Feinsod's contention that the term "legal action" is ambiguous or otherwise lacking in clarity. Construed in context, and according to its "plain, everyday meaning" (McIlmoil v. McIlmoil, supra at 562; and Hardwick Properties, Inc. v. Newbern, 711 So.2d 35, 41 [Fla. 1st Dist. Ct. App. 1998]), the disputed phrase plainly refers to a proceeding commenced by or against Stiefel, in which Feinsod has supplied written or oral testimony.

It is significant that paragraph 8 (b) not only makes reference to the phrase "legal action", it immediately narrows the scope of the term's meaning through reference to Feinsod's giving of "oral or written testimony either in deposition, discovery proceedings, or before any court, judicial or administrative body, in a legal action * * *" (emphasis supplied).

Moreover, paragraph 8 (b) draws a distinction for the purposes of compensation between the services required by the agreement and certain additional functions potentially associated with the commencement of litigation involving Stiefel. In sum, the parties anticipated the potential for litigation and provided for additional compensation in the event Feinsod was required to testify in connection with any proceeding which might be instituted. It follows, therefore, that the 1% rate would be applicable only if Feinsod was required to perform specified [*5]functions beyond those contemplated and already required by the preceding paragraphs of the agreement. Since he clearly did not perform those additional functions, he has failed to demonstrate entitlement to the increased, 1% royalty rate.

Assuming arguendo as Feinsod now contends that Stiefel threatened litigation against Dermik and issued a "cease and desist" letter; that Stiefel, Dermik and their respective counsel engaged in settlement negotiations; and that Feinsod's declaration was material in persuading Dermik to enter into the cross-licensing agreements, these occurrences do not establish compliance with the condition agreed upon by the parties as a prerequisite to the payment of the 1% royalty.

Plaintiff's contention that summary judgment should be denied pending further discovery relating to the foregoing factual contentions, does not furnish a reason for delaying the disposition of Stiefel's motion. CPLR 3215 (f). See also, Kracker v. Spartan Chemical Co., Inc., 183 A.D. 2d 810, 813 (2nd Dept. 1992). See also, Connecticut Indem. Co. v. Travelers Ins. Co., 300 A.D. 2d 530 (2nd Dept. 2002); and Petitpain v. Curti, 269 A.D. 2d 376 (2nd Dept. 2000). Mere speculation that further discovery will reveal facts that supports Plaintiff's claims cannot be permitted to delay or postpone summary judgment. Hampton Living, Inc. v. Carltun on the Park, Ltd., 286

A.D. 2d 664 (2nd Dept. 2001); and Romeo v. City of New York, 261 A.D. 2d 379 (2nd Dept. 1999).

The Court's conclusion that the agreement is unambiguous and complete also precludes Feinsod's reliance upon extrinsic, oral statements which conflict with the terms of the parties' integrated agreement; to wit: Feinsod's claim that a non-party (Mr. Balancia) allegedly assured him, among other things, that the execution of the declaration would establish his entitlement to the 1% rate.

Florida law holds in this respect that, "[e]xtrinsic evidence regarding a contract's meaning should not be admitted if the contract is not ambiguous." Kraft v. Mason, 668 So.2d 679, 685 (Fla. 4th Dist. Ct. App.1996); and J.C. Penney Co., Inc. v. Koff, 345 So.2d 732, 735 (Fla. 4th Dist. Ct. App.1977). See also, Laboratory Corp. of America v. McKown, 829 So.2d 311, 313 (Fla. 5th Dist. Ct. App. 2002); and Avis Rent A Car System, Inc. v. Monroe County, 660 So.2d 413, 414 (Fla. 3rd Dist. Ct. App. 1995). Cf., J. M. Montgomery Roofing Co. v. Fred Howland, Inc., 98 So.2d 484, 485-6 (Fla. Sup. Ct., 1957).

The Court notes that paragraph 12 provides that the agreement constituted the entire understanding between the parties, and could "be modified or amended only in a written agreement executed by both parties." Federal Deposit Ins. Corp. v. Hemmerle, 592 So.2d 1110, 1113 (Fla. App. 4th Dist. Ct. App. 1991). Accordingly, the purported oral statements made by Mr. Balancia are immaterial to the analysis and construction of the parties' agreement. This is especially true when it is remembered that at the time of the execution of the Letter Agreement, Feinsod was represented by counsel.

"It is axiomatic that '[s]ummary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law'." Cohen v. Kravit Estate Buyers, Inc., 843 So.2d 989, 991 (Fla. 4th Dist. Ct. App. 2003), quoting from, Volusia County v. Aberdeen at Ormond Beach, L.P.,760 So.2d 126, 130 (Fla. Sup. Ct. 2000).

The Court has considered the Plaintiff's remaining contentions and concludes that none raise material issues of fact sufficient to defeat Stiefel's motion for summary judgment.

Lastly, since the Court has dismissed the Plaintiff's action, it is unnecessary to address Stiefel's claims concerning the propriety of certain reply papers filed by Feinsod in his separately noticed motion to disqualify Pennie & Edmonds, LLP as Stiefel's trial counsel.

Accordingly, it is,

ORDERED, that the motion by Defendant Stiefel Laboratories, Inc. for summary judgment is granted and the complaint is dismissed.

This constitutes the decision and Order of the Court.

January 2, 2004 Hon. LEONARD B. AUSTIN, J.S.C.

XXX

Decision Date: January 02, 2004