Trepp, LLC v McCord Dev., Inc.

Trepp, LLC v McCord Dev., Inc. 2012 NY Slip Op 07777 Decided on November 15, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 15, 2012
Friedman, J.P., Catterson, Renwick, DeGrasse, Román, JJ.
8590 650004/11

[*1]Trepp, LLC, Plaintiff-Appellant,

v

McCord Development, Inc., Defendant-Respondent.




Meltzer, Lippe, Goldstein & Breitstone, LLP, Mineola
(Richard M. Howard of counsel), for appellant.
Mandel Bhandari LLP, New York (Evan Mandel of counsel),
for respondent.

Judgment, Supreme Court, New York County (Anil Singh, J.), entered January 18, 2012, pursuant to a so-ordered stipulation granting summary judgment in favor of plaintiff in the total amount of $101,908.06, and bringing up for review an order, same court and Justice, entered April 6, 2011, which denied defendant's motion to dismiss the portion of the complaint seeking $78,000 owed for the second year of the contract, following automatic renewal, unanimously affirmed, with costs.

The contract under which plaintiff agreed to give defendant access to its information and analytics concerning commercial and collateral mortgage-backed securities for a fee via plaintiff's website does not constitute a contract for "service . . . to personal property" (see General Obligations Law § 5-903; Wornow v Register.Com, Inc., 8 AD3d 59 [1st Dept 2004]). The contract did not involve the provision or lease of personal property (see General Obligations Law § 5-901; compare Ovitz v Bloomberg L.P., 77 AD3d 515 [1st Dept 2010], affd 18 NY3d 753 [2012]).

Defendant's contention that the contract permits it to terminate its subscription after the initial three months upon giving 15 days written notice is unpreserved. In any event, such interpretation amounts to a strained reading of the plain language of the contract.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 15, 2012

CLERK