In this action for the alleged breach of sales representative agreements in the television advertisement field, plaintiffs MMT Sales, L.L.C. (MMT) and Harrington Righter & Parsons, L.L.C. (HRP)(together, plaintiffs) move for summary judgment on their complaint.

MMT and HRT are affiliated national sales representatives in the business of selling television air time to media buyers, on behalf of television stations owned by broadcasters, such as defendants. Plaintiffs are wholly owned subsidiaries of Cox Reps, Inc., which is an "indirect wholly owned subsidiary" of Cox Enterprises, Inc. (together, Cox). Palmer Aff., at 1. Plaintiffs explain that there are currently only two national sales representative companies competing with MMT. The companies are known as Katz Communications, Inc. (Katz), which has three affiliates, and Petry Media Corporation (Petry), which has two affiliates.

Defendants Acme Television Holdings, LLC, Acme Television of Ohio, LLC, Acme Television Licenses of Ohio, LLC, Acme Television of Wisconsin, LLC, Acme Television Licenses of Wisconsin, LLC, Acme Television of Tennessee, LLC, Acme Television Licenses of Tennessee, LLC, Acme Television of New Mexico, LLC, and Acme Television Licences of New Mexico, LLC (Acme), own six television stations in the areas of Tennessee, New Mexico, Ohio and Wisconsin.

Acme contracted with MMT for MMT to provide exclusive national sales representation services to Acme, pursuant to a Master Agreement and six identical representation agreements (Rep Agreements). The parties arrived at a final Master Agreement and Rep Agreements, after a number of amendments, maintaining all material terms, and extending the Rep Agreements to 2013. Affidavit of David M. Palmer (Palmer), Exhibits B and C.

The Rep Agreements contain several provisions germaine to the present action. Paragraph 8 (a) provides that the Rep Agreements contracts are "firm and non-cancelable" until the termination date of each Rep Agreement. Paragraph 8 (b) states that

[s]hould [Acme], despite the firm, non-cancelable nature of this AGREEMENT, terminate this AGREEMENT at any time prior to [the termination date], whether with cause or without cause, it is agreed that, either as a "break-up" fee or as liquidated damages consistent with industry practice, [Acme] will pay, or cause to be paid, to [MMT] a buy out of [MMT's] contract rights [a fee as calculated in the manner detailed in this paragraph].

Paragraph 16, as relevant, provides that "[n]either party hereto shall have the right to assign this AGREEMENT without written consent of the other," except that Acme has the right to ["may"] assign the Rep Agreement to an "entity controlled by or under common control with" Acme. In such event, Acme has to provide written notice to MMT.

On May 7, 2009, MMT claims to have assigned the six Rep Agreements to its affiliate, HRP. MMT insists that it did so with the express, verbal consent of Acme, although no formal writing was executed on that date. At the same time, MMT assigned all of its other Rep Agreements to HRP, except for an agreement or agreements with Post-Newsweek, a broadcasting company with six television stations. Thus, MMT assigned most, but not all, of its accounts to HRP.

For the next two months, Acme and HRP appear to have worked together in the process of [*2]selling air spots to media buyers. According to plaintiffs, Acme cooperated with the assignment by notifying media buyers in writing of the assignment, in order to allow HRP to act as Acme's sales representative; issued invoices to national media buyers listing HRP as Acme's sales representative; and paid HRP for its work. Numerous e-mails issuing from Acme personnel from May to July 2009 appear to praise HRP for the work it was doing. Case in point is an e-mail from Acme's Vice President/Director of Sales, Sharon Weiler (Weiler), who e-mailed Nan Diley of HRP on June 30, 2009 that "I just love your team." Aff. of Palmer, Ex. Q. Also, according to plaintiffs, James Monahan, President of Cox, along with representatives of Acme, including Weiler, and Acme's President, Douglas Gealy (Gealy), lunched together on May 19, 2009, in a friendly atmosphere of cooperation. Plaintiffs claim that, for the two months following the alleged assignment, MMT heard no complaints about, or objections to, HRP's performance.

On June 2, 2009, Palmer sent Gealy a letter agreement for his signature, allegedly confirming the assignment of the Rep Agreements to HRP (assignment letter). Palmer Aff., Ex. T. In the assignment letter, the following statement is made: "MMT wishes to assign its rights under the Master Agreement and the Rep Agreements to its affiliate [HRP], whereupon HRP agrees to assume all of MMT's obligations thereunder. Acme is willing to consent to such assignment, upon and subject to the terms and conditions hereinafter set forth." Id.

MMT received no response from Acme, and HRP continued to act as Acme's sales representative, with full cooperation from Acme. However, by a letter dated July 3, 2009 to both MMT and HRP, Acme purported to terminate all six Rep Agreements, effective July 10, 2009 (termination letter). It claimed that it "was not prepared to and does not consent to the assignment ... ." Palmer Aff., Ex. U. Acme gave as its reason for the termination that MMT had breached paragraph 16 of the Rep Agreements by allegedly "effect[ing]" an assignment to HRP without written consent from Acme. Id.

Following the alleged termination, Acme contracted with Katz, as of July 13, 2009, days after the alleged termination of MMT's Rep Agreement, executing six Rep Agreements between itself and Katz, providing that Acme's six television stations would be distributed to Katz's affiliates. Unlike MMT's Rep Agreements, the Katz Rep Agreements do not require written consent to assignment of the Rep Agreements to its affiliates.

Plaintiffs now seek $2,377,504.31 in damages under the "break-up" provisions in paragraph 8 (b) of the Rep Agreements, following the formula contained therein.^[FN1] Plaintiffs maintain that, under the plain language of paragraph 8 (b), MMT is entitled to such damages because, even if it wrongfully terminated the Rep Agreements as Acme claimed in the termination letter, paragraph 8 (b) of the Rep Agreements provides that the break-up fees are due whether or not the termination was made "for cause." Plaintiffs argue, alternatively, that the many e-mail and verbal communications between Acme and HRP while HRP was representing Acme comport to the necessary "writing" required by paragraph 16.

Plaintiffs also argue that paragraph 16 does not apply to assignments to affiliates, because it came into existence as an industry standard in a time, 30 years ago, when there were many more sales representation companies than there are now (15), none of which had affiliates. According to plaintiffs, this fact makes paragraph 16 "antediluvian," and inapplicable to the present era. Plaintiffs' [*3]Memorandum of Law, at 20. Plaintiffs even point to the language in the new Katz Rep Agreements which specifically allows for the assignment to Katz affiliates without written permission, as evidence that the same provision logically should be read into MMT's Rep Agreements with Acme.

Finally, plaintiffs assert that Acme has either waived its right to rely on paragraph 16, or should be estopped from doing so.

Acme tells a very different story. According to Acme, Monahan of Cox telephoned Gealy on May 6, 2009, to inform him that MMT would be closing down because of the failing economy, would cease all performance of the Rep Agreements, and would be moving Acme's accounts to HRP.^[FN2] Acme claims that it was not asked to agree to the assignment, but instead was told that it had occurred.

Acme claims that "Mr. Gealy was shocked by the unexpected news" (Acme Memorandum of Law, at 6), and felt that he had no choice in the matter, in that Acme was now forced, against its will, to use HRP until a new arrangement could be made. Acme claims that it did not want to work with HRP, having had an relationship with HRP years ago which had ended badly, due to HRP's alleged inability to meet Acme's needs.

In stark contrast to MMT's story of a pleasant lunch with Acme's representatives, and a good relationship between Acme and HRP in the two months between the alleged assignment and the termination letter, Acme claims that Gealy informed Palmer at the lunch that the Rep Agreements were now "null and void," and that any new contract between Acme and HRP would have to be written up and reviewed by Acme's parent company, Acme Communications, Inc. Gealy Aff., at 9. In the termination letter, Acme refused to sign MMT's assignment letter, claiming instead that MMT was in breach of the Rep Agreements, and that they were, as a result, terminated. According to Acme, it is significant that the assignment letter did not, allegedly, purport to be an affirmation of an already agreed-to assignment, but was worded as an agreement to an assignment going forward. It is noted that, in the termination letter, Acme characterizes the assignment as a breach of the Rep Agreements, not a termination of them by MMT.

Acme denies that any sufficient writings exist to verify the assignment. In fact, Acme denies that the accumulation of e-mails and other communications expressed any satisfaction with HRP's work at all. Rather, despite the indisputable reassuring and congratulatory tone of these many communications, Weiler now claims that Acme was just doing the best it could with a bad situation, and that its personnel wrote those notes merely to encourage HRP, which Acme did not really think was up to the job. Acme denies that the writings could possibly constitute a writing under paragraph 16.

Acme also claims that HRP received many communications from Gealy, Weiler, and others "communicating Acme's complaints and frustrations about the poor service HRP was providing." Gealy Aff., at 11. None of these complaints appears to have been made in writing.

Acme also denies that paragraph 8 (b)'s language allows MMT to collect a break-up fee, despite the "with or without cause" language contained therein. Acme insists that the Rep Agreements, read as a whole, do not allow for such an interpretation, and that it was MMT who terminated, in fact, actually "abandon[ed]" and "repudiat[ed]" the Rep Agreements, without the [*4]written notice to Acme to which Acme was entitled. Acme Memorandum of Law, at 14. This material breach, claims Acme, allowed it to terminate the Rep Agreements without undue consequences.

"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law." Dallas-Stephenson v Waisman, 39 AD3d 303, 306 (1st Dept 2007), citing Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Upon proffer of evidence establishing a prima facie case by the movant, "the party opposing a motion for summary judgment bears the burden of produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact.'" People v Grasso, 50 AD3d 535, 545 (1st Dept 2008), quoting Zuckerman v City of New York, 49 NY2d 557, 562 (1980).

If there is any doubt as to the existence of a triable issue of fact, summary judgment must be denied. Rotuba Extruders v Ceppos, 46 NY2d 223 (1978); Gross v Amalgamated Housing Corporation, 298 AD2d 224 (1st Dept 2002).

The interpretation of unambiguous contracts is a matter of law for the court's determination. 805 Third Avenue Corp. v M.W. Realty Associates, 58 NY2d 447(1983); Fetner v Fetner, 293 AD2d 645 (2d Dept 2002). It is settled that " when parties set down their agreement in a clear, complete document, their writing should ... be enforced according to its terms.'" South Road Associates, LLC v International Business Machines Corporation, 4 NY3d 272, 277 (2005), quoting Vermont Teddy Bear Company v 538 Madison Realty Company, 1 NY3d 470, 475 (2004). "[T]he cardinal rule" of the interpretation of contracts is that "where the language of the contract is clear and unambiguous, the parties' intent is to be gleaned from the language of the agreement and whatever may be reasonably implied therefrom [internal quotation marks and citation omitted].'" Reiss v Financial Performance Corporation, 279 AD2d 13, 29 (1st Dept 2000), affd as mod 97 NY2d 195 (2001); see also Dudick v Gulyas, 4 AD3d 604 (3d Dept 2004). "It is well settled that a contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion [internal quotation marks and citations omitted]." White v Continental Casualty Co., 9 NY3d 264, 267 (2007); see also Vintage, LLC v Laws Construction Corp., 13 NY3d 847 (2009).

In the present case, there is no proof of a written agreement among the e-mails and other written communications, which, for the most part, were written by persons not in a position to bind Acme. "[I]t is true that an agreement sufficient to satisfy the statute of frauds may be pieced together from separate writings ..." (Chan v Shew Foo Chin, 62 AD3d 471, 471 [1st Dept 2009]); however, "it is imperative that the separate writings together refer to the same subject matter or transaction and unequivocally establish all the essential elements of the contractual relationship ... such as price, terms, parties and a description of the subject matter [internal quotation marks and citation omitted]." Syman v Vanderheuval, 249 AD2d 870, 872 (3d Dept 1998). At least one of the writings " must bear the signature of the party to be charged ... .'" Taylor Diversified Corporate Services, Inc. v AMBAC Assurance Corp., ___AD3d___, 2011 WL 560413, *1, 2011 NY App Div LEXIS 1195, *3 (2d Dept 2011), quoting Crabtree v Elizabeth Arden Sales Corp., 305 NY 48, 55-56 (1953).

Applying the above, it is clear that a cohesive writing cannot be gleaned from the pastiche of e-mails and writings . Therefore, there is no evidence that Acme has agreed in writing to the [*5]assignment, and paragraph 16 is not satisfied.

In any event, I reject plaintiffs' argument that the "antediluvian" nature of paragraph 16, along with the fact that the new Katz agreements do not require consent to an assignment of the Rep Agreements to Katz affiliates, allows MMT to avoid application of paragraph 16. The paragraph stands.

In the absence of a writing, the question then is whether paragraph 8 (b) allows MMT to collect the buy-out fee based on Acme's alleged termination of the Rep Agreements, or, whether MMT is barred from reliance on paragraph 8 (b) because it, rather than Acme, terminated the Rep Contracts upon the alleged assignment to HRP. Acme argues that MMT's termination was a material breach of contract, after which, Acme no longer was required to perform under the Rep Agreements.

Although Acme previously spoke of the alleged assignment as a "breach" of the Rep Agreements, Acme now claims that MMT's assignment of the Rep Agreements to HRP was both a material breach of those agreements and a termination of those agreements, after which Acme was not obligated to perform. According to Acme's reasoning, a breach of paragraph 16 by MMT is not "cause" for termination on Acme's part, but is a termination by MMT. However, there is no evidence of such termination by MMT. Rather, the evidence shows that an assignment was made. While Acme had the right to object to the assignment, it is clear that it accepted ( even if reluctantly) the assignment for two months, acting to all intents and purposes as if it was being represented by HRP. While waiver is not found by such actions, Acme's behavior after the alleged assignment was announced does not comport with its claim that there was a termination of the Rep Agreements. Thus, it is evident that I am dealing with an alleged material breach of paragraph 16 by MMT, not a termination of the Rep Agreements by MMT. Since the Rep Agreements were finally terminated by Acme, not MMT, due to MMT's alleged material breach of the Rep Agreements, paragraph 8 (b) comes into play.

Paragraph 8 (b) is not ambiguous. It states that, if MMT is terminated, at any time, with or without cause, it is owed a break-up fee. I disagree with Acme that whether or not the "with or without" language found in the clause applies is a function of industry practice. Rather, a reading of the paragraph, as punctuated, indicates that the term "industry practice" refers to the type of damages which will be formulated, not to whether or not the "with or without cause" language, as used in the industry, would apply to keep MMT from recovering the break-up fee.

Acme argues that paragraph 8 (b) must be read in the context of the agreements as a whole which, of course, is true. Acme posits a situation where MMT refuses to perform under the contract from day one, pointing to the alleged absurdity of allowing MMT to collect any break-up fee should Acme choose to terminate the agreements as a result of MMT's postulated recalcitrance.

The difficulty with this scenario is that paragraph 8 (b), as written, does indeed call for such a result, by the unusual inclusion of the "with or without fault" language, language which cannot be read out of the Rep Agreements without doing significant damage to MMT's rights. There is nothing in the Rep Arrangements that would indicate that a material breach of the agreements (such as a failure to obtain consent to an assignment) is not "cause" under paragraph 8 (b). The paragraph, ever so broad, is not ambiguous. Upon Acme's termination of the Rep Agreements, even as a result of MMT's actions, Acme must pay MMT the break-up fee called for in the agreements. Had the parties not intended this result, they should not have allowed such a broadly worded clause to appear in the Rep Agreements. [*6]

Christal Radio Sales, Inc. v Four Seasons Communications, Inc., In. No. 602564/97 (Sup Ct, NY County, February 17, 1998)(Aff. of Judith R. Cohen, Ex. G), cited by Acme, addressed the issue of the fall-out from an assignment of radio sales representation contracts to affiliates of the original contractees. However, that decision is based, foremost, on a finding that the representation contracts involved were personal service contracts. The issue does not need discussion.^[FN3] There is certainly nothing in the relationship between Acme and MMT which would serve to make the Rep Agreements personal service contracts, and, as a result, in Christal is not persuasive.

As a result of this conclusion, it is unnecessary to address plaintiffs' further arguments based on waiver and estoppel. Moreover, I note that Acme has offered no objection to the formulation of plaintiffs' damages, raising no question of fact as to their accuracy. See Katz Communications, Inc. v Evening News Association, 705 F2d 20, 25 (2d Cir 1983)(computation of damages appropriate where figure not "speculative, possible or imaginary," but rather "the best approximation possible through the exercise of good judgment and common sense in arriving at that amount").

Accordingly, it is

ORDERED that plaintiffs MMT Sales, L.L.C. and Harrison Righter & Parson's, L.L.C.'s motion for summary judgment on their complaint is granted, and the Clerk is directed to enter judgment in favor of plaintiffs and against defendants Acme Television Holdings, LLC, Acme Television of Ohio, LLC, Acme Television Licenses of Ohio, LLC, Acme Television of Wisconsin, LLC, Acme Television Licenses of Wisconsin, LLC, Acme Television of Tennessee, LLC, Acme Television License of Tennessee, LLC, Acme Television of New Mexico, LLC., and Acme Television Licenses of New Mexico, LLC in the amount of $2,377,504.31, together with interest at the rate of 9% per annum from the date of July 3 2009, until the date of the decision on this motion, and thereafter at the statutory rate, as calculated by the Clerk, together with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs.

Dated:__________________________

ENTER:

___________________________J.S.C.