Motion sequence numbers 004 and 005 are consolidated for disposition.

Defendant moves for summary judgment, CPLR 3212; to strike the amended bill of particulars, CPLR 3024; to preclude expert testimony; and for sanctions. Plaintiffs cross move for summary judgment, CPLR 3212.

Facts:

Plaintiffs are developers of instructional accounting periodicals, including "The Practical Accountant," "Client's Monthly Alert," and "Computers in Accounting." By an Asset Purchase Agreement dated June 10, 1985, and two Executive Employment Agreements dated June 18, 1985, plaintiffs sold the foregoing publications, and certain ancillary promotional publications, to defendant, in exchange for royalty and other payments.

Under paragraphs 3.6 and 3.7 of the Employment Agreements, plaintiffs had the opportunity to receive contingent incentive compensation and severance payments (collectively, the "Incentive Compensation"), under a formula by which they would receive a total of 50 percent of the gross revenue from the publications in excess of certain base amounts,^[FN1] after offsetting certain deferred compensation. The Employment Agreements were to terminate on [*2]December 31, 1987.

Paragraph 3.9 of the Employment Agreements provided for additional contingent compensation. If plaintiffs developed new products, they would be entitled to royalties of 10 percent of the gross revenue therefrom, after defendant's recapture of development costs.

Under the Agreements, plaintiffs were paid $20,000,000.00, plus certain deferred compensation, in the years 1985 through 1989 the term of the Agreements.

The complaint alleges that defendant (i) mismanaged the marketing of the publications, causing plaintiffs to lose the opportunity to receive Incentive Compensation; (ii) improperly modified plaintiffs' job responsibilities, rendering them unable to develop new products; and (iii) misappropriated whatever new product ideas plaintiffs succeeded in developing during the employment term.

Specifically, defendant's mismanagement is alleged to consist of the following:

Defendant mishandled subscription services, causing the loss of previously acquired customers;

Defendant failed to generate substantial revenue through maximizing its rental of plaintiffs' subscription lists to other purveyors;

Defendant withheld information from plaintiffs concerning publication status, in frustration of their responsibilities under the Employment Agreements which provide that "[t]he Executive shall initially be a Publisher-Editor of the Company." (Employment Agreements ¶ 1.1.); and

Defendant used advertising space in plaintiffs' publications to promote other publications unrelated to plaintiffs.

With regard to misappropriation of new products, plaintiffs specifically allege that in July 1986, they proposed to defendant's president the creation of a newsletter for financial planners (Complaint ¶¶ 53-54). Plaintiffs claim that defendant stole the idea by independently announcing, one year later, the creation of an almost identical newsletter (id., ¶ 55).

The complaint asserts causes of action for breach of the implied covenant of good faith (Count I); breach of contract (Count II); and "Negligent Performance of Contract" (Count III).

After years of sporadic discovery, this action was marked off calendar in December 1995, due to plaintiffs' failure to appear at scheduled conferences. In June 2000, plaintiffs moved to vacate the dismissal, and to restore the action to the calendar. This court denied the motion. On appeal of that denial, the Appellate Division held that CPLR 3404, which provides for dismissal of marked off cases, "should not apply to cases in which a note of issue has not been filed." (301 [*3]AD2d 381 [1st Dept 2003].)^[FN2] The Appellate Division, accordingly, ordered this action to be restored.

Discussion:

The Agreements vest defendant with exclusive authority to manage, and, even, terminate, the publications. Paragraph 11.6 of the Assets Purchase Agreement provides:

11.6Management of Publications. The Stockholders each acknowledge

and agree that the Buyer shall have all rights and incidents of ownership of thePublications, including, without limitation, all rights to own, manage and operate

the Publications, such as the right, in its sole discretion, to terminate any or all of

the Publications, and that the Restrictive Covenants shall survive any such

termination.

Likewise, Paragraph 3.9.1 of the Employment Agreements provides that "[t]he Company has the right, in its discretion, to terminate any New Product at any time."

To be sure, every contract contains an implied obligation of good faith and fair dealing (Dalton v Educational Testing Serv., 87 NY2d 384 [1995]). Thus, neither party may do anything that would have the effect of injuring the right of the other to receive the fruits of the contract (id.). However, this duty does not imply any obligation that would be directly inconsistent with Agreements' express terms (Murphy v American Home Prods. Corp., 58 NY2d 293 [1983]).

The Assets Purchase Agreement expressly vests defendant with exclusive managerial power, and with "sole discretion, to terminate any or all of the Publications . . . ." The Employment Agreements similarly vest defendant with "discretion, to terminate any New Product at any time." Plaintiffs' cause of action for breach of the duty of good faith and fair dealing runs contrary to defendant's unlimited contractual powers to manage the assets and to terminate the arrangement, altogether (see also, Jaffe v Paramount Communications Inc., 222 AD2d 17 [1st Dept 1996] ["plaintiff failed to allege any facts to demonstrate that Paramount deprived him of any rights he had under the Agreement, and the IAS court properly dismissed this claim."]).

While it is true that discretionary powers must be exercised in a manner that is not arbitrary or irrational (Dalton, supra, at 389), plaintiffs' deposition testimony does nothing more than criticize defendant's business skills. On May 20, 1992, Behren expressly admitted that defendant took no intentional action to harm him (Order to Show Cause Ex. K at 90). On November 24, 1992, Cohen characterized defendant's employees as follows: "he didn't know anything about circulation[;]" "they were totally inept[;]" "[t]hey were a bunch of idiots." (Id., at 136, 137.) Cohen admitted that defendant's actions amount to "a bad business judgment[;]" expressly denied any "bad faith" on defendant's part; "attributed [his dissatisfaction] to negligence by [defendant's] employees[;]" and openly conceded that "this whole lawsuit is based on, a lot of stupidity, a lot of bad business decisions . . . ." (Id., at 141, 147, 299; see also, id., e.g., at 368, 395, 473, 475.) Significantly, Cohen disavowed any irrational action on defendant's [*4]part; characterizing it, instead, as overly "cautious" (id., at 536).

Plaintiffs' deposition testimony does not accuse defendant of deliberately seeking "to prevent the performance of the contracts or to withhold its benefits from" them (Dvoskin v Prinz, 205 AD2d 661 [2d Dept 1994]; see also, Kader v Paper Software, Inc., 111 F3d 337, 342 [2d Cir 1997] [defendant must have acted "intentionally and purposely" in order to sustain a claim of breach of the duty of good faith and fair dealing under New York law] [emphasis in original]; Tagare v NYNEX Network Sys. Co., 994 F Supp 149 [SD NY 1997] [claims of corporate negligence did not make out a claim for breach of the duty of good faith and fair dealing under New York law]).

Consequently, the first cause of action is dismissed.

Our courts do not recognize a cause of action for "Negligent Performance of Contract" (City of New York v 611 W. 152nd St., Inc., 273 AD2d 125 [1st Dept 2000]). Where a party is, in essence, seeking enforcement of a contract, he or she is relegated to a theory of contract not negligence (Clark-Fitzpatrick , Inc. v Long Island R. R. Co., 70 NY2d 382 [1987]). The third cause of action for "Negligent Performance of Contract" is, therefore, dismissed.

As for breach of contract, the Agreements vested defendant with complete and exclusive operational authority, even to the extent of declaring them terminated (see, Red Apple Child Dev. Ctr. v Community School Dists. Two, et al., 303 AD2d 156 [1st Dept] [contractual right of unconditional termination "will be upheld in accordance with its clear and unambiguous terms."] [citations omitted], lv denied 1 NY3d 503 [2003]). The bulk of plaintiffs' claims ^[FN3] ignore that reality. Moreover, plaintiffs' allegation that they were denied access to information needed for them to run the publications during the transition stage,^[FN4] is contradicted by Cohen's deposition testimony, confirming that all such information was disseminated to them, as requested (Order to Show Cause Ex. I).

In sum, for all of plaintiffs' protestations, no genuine issue of fact is presented which would warrant a finding that defendant has breached its obligations, as set forth in the Asset Purchase Agreement and Employment Agreements, as a matter of law. The complaint, in its current form, does not accuse defendant of failing to pay plaintiffs the revenue due them under the payment formulas in the Agreements. Rather, they suggest that defendant's "mismanagement" prevented the figure from being higher. As stated, however, the Agreements explicitly vest defendant with sole managerial authority, to the point of unilateral termination.^[FN5] [*5]In addition, there is no provision in the Agreements which requires defendant to enable plaintiffs to develop new products, in contradistinction to plaintiffs' unfounded position that they were, somehow, wrongly prevented from engaging in such development. Again, as with other aspects of the parties' relationship, defendant possessed unqualified contractual authority to terminate new product programs.

As recited above, plaintiffs allege that in July 1986, they proposed to defendant's president the creation of a newsletter for financial planners, and that defendant misappropriated the idea by independently announcing, one year later, the creation of an almost identical newsletter (Complaint ¶¶ 53-55). This claim is defective for the following reason. In order to qualify as a "New Product" under the Employment Agreements, plaintiffs must have initiated a research and development process, which entails:

the development of a publishing product's editorial concept and focus,

review of the potential market for such product, recruitment of authors

and/or editors for such market, evaluation of the manuscript of such

product, review of such manuscript with the author and/or editor and

completion of the first edition or issue of such product.

(Employments Agreements ¶ 3.9.1.) Cohen admitted that no written proposals for new publications were made by them, and any oral conversations about such ideas were too general to be characterized as new products under the Agreements (Order to Show Cause Ex. Q). Plaintiffs could point to no document evidencing any effort on their part to promote new products (id., Ex. R). Absent a contractual mandate, no cause of action for misappropriation of business ideas exists unless the ideas were truly novel (Robinson v Viacom Intl., Inc., 242 AD2d 481 [1st Dept 1997]; Surplus Equip., Inc. v Xerox Corp., 120 AD2d 582 [2d Dept], lv denied 68 NY2d 606 [1986]). Plaintiffs make no showing that their "idea" for a newsletter for financial planners was, by any means, novel (see, Surplus Equip., Inc., supra ["at most, the plaintiff's idea was a useful adaptation of existing knowledge' and not a truly novel idea."] [citation omitted]).

Most tellingly, prior to this action, plaintiffs never even inquired into any purported entitlement arising out of "New Product" development, as Cohen acknowledged during his deposition:

Prior to the institution of this lawsuit, did you ask for the list to see what publications, if any, that you claim are new product, for which you were entitled to new product royalties that were listed?

No.

(Order to Show Cause Ex. O at 17; see also, id., at 93, 437-38.)

Finally, Cohen states that "pre-agreement negotiations" included an offer "with a possible value of $25 million, including the up-front cash payment and estimated royalties . . . ." (Cohen Aff. [10/7/03] ¶ 5.) He concludes, based on that assertion, that "[y]ou don't have to be a CPA to see we are $5 million short of the consideration contemplated even by WG & L [i.e., defendant]." (Id., ¶ 6.) It is elemental that such parol assertions are precluded in the face of the unambiguous and integrated Agreements governing the parties' relationship herein (Lopez v Fernandito's Antique, Ltd., 305 AD2d 218 [1st Dept 2003]; Ahava Dairy Prods. Corp. v Trident Leasing Corp., 1 AD3d 546 [2d Dept 2003]).

Consequently, the second cause of action for breach of contract, is dismissed, and the complaint is dismissed.

Plaintiffs have served an amended bill of particulars, seven years into the case, which alleges that defendant failed to correctly account for Incentive Compensation previously earned by them. Since the complaint was based upon alleged acts preventing plaintiffs from earning future Incentive Compensation, and usurpation of plaintiffs' new products, this represents a new theory. The purpose of a bill of particulars is to amplify the pleading, and it is improper to use it to set forth new theories of recovery (Linker v County of Westchester, 214 AD2d 652 [2d Dept 1995]). Since plaintiffs never moved for leave to amend the complaint, the court will not consider the amended bill of particulars, containing new factual bases. Thus, defendant's motion to strike the bill of particulars is granted.

In connection with the amended bill, plaintiffs served a report from their expert, Paul Rosenzweig, in support of their newly asserted allegations of under calculated past Incentive Compensation. Defendant moves to preclude Rosenzweig's expert report and related testimony and affidavits. In view of the above determination, defendant's motion to preclude is granted.

The court does not find plaintiffs' conduct to be sufficiently egregious as to warrant sanctions. Defendant's motion for sanctions is denied.

Accordingly, it is

ORDERED that defendant's motion for summary judgment is granted, and the complaint is dismissed; and it is further

ORDERED that defendant's motions for an order striking the amended bill of particulars, and for an order precluding expert testimony, are granted; and it is further

ORDERED that defendant's motion for sanctions is denied; and it is further

ORDERED that the plaintiffs' cross motion for summary judgment is denied.

Dated:April 28, 2004

E N T E R :

/s/

J. S. C.