Spirit & Sanzone Distributors Co. v. DeCrescente Distributing Co.

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying that part of defendants’ motion seeking partial summary judgment dismissing the third cause of action. In that cause of action, plaintiff sought to recover damages on the theory that it was an intended third-party beneficiary of a distributorship agreement between defendant DeCrescente Distributing Co., Inc. and a nonparty, Miller Brewing Company. As a matter of law, plaintiff is not an intended beneficiary of that agreement (see generally, Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 NY2d 38, 43-45; Port Chester Elec. Constr. Corp. v Atlas, 40 NY2d 652, 655), and thus the court should have dismissed the third cause of action (see, Piccoli A/S v Calvin Klein Jeanswear Co., 19 F Supp 2d 157, 162-164 [SD NY]; In re Houbigant, Inc., 914 F Supp 964, 985-986, rearg granted on other grounds 914 F Supp 997 [SD NY]; cf., New York Pepsi-Cola Distribs. Assn. v Pepsico, Inc., 240 AD2d 315; Artwear, Inc. v Hughes, 202 AD2d 76, 81-84). We thus modify the order by granting defendants’ motion in part and dismissing the third cause of action.. (Appeal from Order of Supreme Court, Onondaga County, Roy, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Pine, Hurlbutt, Kehoe and Lawton, JJ.