WebMD, LLC v RDA Intl., Inc.

[*1] WebMD, LLC v RDA Intl., Inc. 2009 NY Slip Op 50115(U) [22 Misc 3d 1114(A)] Decided on January 6, 2009 Supreme Court, New York County Ling-Cohan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 6, 2009
Supreme Court, New York County

WebMD, LLC, f/k/a WebMD, Inc., Plaintiff,

against

RDA International, Inc. d/b/a RDA INTERACTIVE, Defendant.



102830/08



Counsel for plaintiff:

Law Offices of Stephen I. Silberfein, P.C

1212 Avenue of the Americas

NY, NY 10036

Counsel for defendant:

Martin S. Rapaport, Esq.

18 East 48th Street, 6th Floor

NY, NY 10017

Doris Ling-Cohan, J.

BACKGROUND

Plaintiff moves for summary judgment, pursuant to CPLR 3212, as to liability and damages for breach of contract in the amount of $362,276.50, and to strike defendant's affirmative defenses.[FN1]

The parties entered into an internet advertising contract on January 30, 2007, in which plaintiff guaranteed "... 36,000 [*2]visitors to WebMD Health Zone and WebMD related condition centers driving to www.eucerin.com website." (Agency Agreement, Exh. D, Baierwalter Aff)., on which website defendant's client agreed to advertise. On October 3, 2007, and December 12, 2007, respectively, the parties again contracted for advertising space; this time plaintiff guaranteeing that there would be 6,791,727 impressions, pursuant to the October contract, and 605,311 impressions, pursuant to the December contract.

During the period of the contractual obligations, defendant never complained to plaintiff, either orally or in writing, of any dissatisfaction with plaintiff's performance.

According to the terms of the first contract, defendant was to pay plaintiff a total of $358,590, in three equal installments. Defendant was to pay plaintiff a total of $120,000 for the second contract, and $57,720.02 for the third contract. Defendant made two partial payments on the first contract, each for $59,765, in May and July of 2007. Plaintiff continued to send invoices for payment to defendant.

On January 17, 2008, plaintiff received an email from a company retained by defendant to review all of defendant's outstanding media obligations. In this email, defendant's agent acknowledged that defendant owed plaintiff $451,986.50, and offered a 48-month repayment schedule.

Plaintiff filed the instant lawsuit on February 22, 2008.

In its answer, defendant asserts that plaintiff failed to fully perform its contractual obligations. According to defendant, an "impression" is an internet user who accesses a website once in a 30 minute time frame; that user may be counted as a second "impression" if, after the 30 minutes, he or she accesses the site again. Defendant asserts that, by counting the same user multiple times, plaintiff failed to provide 36,000 "unique" visitors. Defendant's assertions are based on definitions by the Interactive Advertising Bureau, Media Rating Council, and Advertising Research Foundation, promulgated between 2001 and 2004, which defined a "unique visitor" as an internet user who is only counted once, regardless of the number of times he or she accesses a site. Based on these definitions, defendant maintains that plaintiff only performed 70-80% of its contractual promises.

DISCUSSION

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [internal quotation marks and citation omitted]." Santiago v Filstein, 35 AD3d 184, 185-186 (1st Dept 2006). The burden then shifts to the motion's opponent to "present facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum [*3]of Art, 27 AD3d 227, 228 (1st Dept 2006); see Zuckerman v City of New York, 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders v Ceppos, 46 NY2d 223, 231 (1978).

It is a settled rule that whether a contract is unambiguous is a question of law that may be decided by the court. Bailey v Fish & Neave, 8 NY3d 523 (2007); W.W.W. Assoc. v Giancontieri, 77 NY2d 157 (1990). In the instant case, the contract clauses have been provided. The contract provision, as cited above, guarantees that plaintiff will provide 36,000 visitors to the site, not 36,000 "unique visitors." Defendant does not dispute the total number of visitors to the site as calculated by plaintiff, but complains that the visitors were not "unique visitors."

Although the term "visitors" is not specifically defined in the contract, the lack of a definition does not, in and of itself, create an ambiguity. As stated in Graev v Graev (46 AD3d 445, 451 [1st Dept 2007]), "extrinsic evidence cannot be used to create an ambiguity in an agreement, but only to resolve an ambiguity. That one party to the agreement may attach a particular, subjective meaning to a term that differs from the term's plain meaning does not render the term ambiguous [internal citations omitted]."

Here, although undefined, the term "visitors" is unambiguous. The definitions advanced by the organizations quoted by defendant refer to "unique visitors," and do not define the term "visitor" to mean "unique visitor." If defendant wished to be guaranteed "unique visitors" to the site, it should have specified such in the agreement.

Even if the term "visitors" were deemed to be ambiguous, its interpretation remains the exclusive function of the court unless the "determination of the intent of the parties depends on the credibility of extrinsic evidence ... [internal quotation marks and citation omitted]." Village of Hamburg v American ref-Fuel Company of Niagara, L.P., 284 AD2d 85, 88 (4th Dept 2001). This is especially true where the contract is entered into by sophisticated and counseled business people. See Wallace v 600 Partners Co., 86 NY2d 543 (1995).

In the instant matter, defendant is asking the court to reform the terms of the agreement to conform to a definition provided by an organization that is not a party to the agreement, and has not submitted any evidence or argument that, at the time of the execution of the agreement, the parties intended something other than what appears on the face of the contract. This the court cannot do. See generally M.S.B Development Company, Inc. v Lopes, 38 AD3d 723 (2d Dept 2007).

From the documents submitted, it appears that defendant [*4]partially paid for plaintiff's services, never complained about those services until served with notice of the instant lawsuit, received invoices based on the agreements to which it did not object, and acknowledged the entire debt claimed by plaintiff, offering a pay out plan. Additionally, in its opposition, defendant allows that, even under defendant's interpretation of the contract terms, plaintiff performed at least 70% of its obligations. In light of all of these circumstances, the court finds that defendant has failed to rebut the plaintiff's prima facie showing of entitlement to the total relief sought.

CONCLUSION

Based on the foregoing, it is hereby

ORDERED that the motion is granted and the Clerk of the Court is directed to enter judgment in favor of plaintiff and against defendant in the amount sought in the notice of motion, $362,276.50, with interest as prayed for as allowable by law at the rate of 9% until the date of entry of judgment, as calculated by the Clerk,, and thereafter at the statutory rate, together with costs and disbursements to be taxed by the Clerk upon submission of an appropriate bill of costs.

Plaintiff's motion to strike defendant's affirmative defenses is deemed moot; it is further

ORDERED that within 30 days of entry of this order, plaintiff shall serve a copy upon defendant with notice of entry.

Dated: January __, 2009

____________________________

Hon. Doris Ling-Cohan, J.S.C. C:\htformat\f5011590.txt Footnotes

Footnote 1: It is noted that while the Notice of Motion seeks damages in the amount of damages $362,276.50, the supporting affidavits and documents indicate damages in the amount of $416,735.00; the judgment, however, is limited to the amount sought in the notice of motion. See CPLR §2214 (a); Lyon v. Lyon, 259 AD2d 525 (2nd Dept 1999); NYCTL 1998-1 Trust v. Prol Properties Corp., 18 AD3d 525 (2nd Dept 2005).