Strategic Domain, Inc. v. Medsite, Inc.

Judgment, Supreme Court, New York County (Helen Freedman, J.), entered February 14, 2002, after a nonjury trial, dismissing the complaint in an action by an advertising agency to recover three months of fees under a 90-day termination provision allegedly contained in an oral contract, unanimously affirmed, without costs. The weight of the evidence supports the trial court’s finding, largely one of credibility (see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]), that the subject oral contract, pursuant to which plaintiff provided advertising services to defendant pending negotiation of a written contract, did not contain the 90-day termination provision that plaintiff seeks to enforce. A different result is not required by the fact that during the three-month period the parties were unsuccessfully negotiating a written contract, defendant paid plaintiff the monthly retainer fee specified in plaintiffs proposed written contract (see Scheck v Francis, 26 NY2d 466, 469-470 [1970]; Wiscovitch Assoc. v Philip Morris Cos., 193 AD2d 542, 542 [1993]). Nor is 369 a different result required by plaintiff’s increased expenditures for space and staff made in anticipation of, and perhaps to facilitate, a successful negotiation (see Absher Constr. Corp. v Colin, 233 AD2d 279 [1996]). The record does not support plaintiff’s claim that defendant promised plaintiff continued business if plaintiff expanded. Concur — Mazzarelli, J.P., Sullivan, Ellerin, Lerner and Marlow, JJ.