Because the alleged agency agreement, pursuant to which plaintiff was to act as defendants' exclusive agent in placing advertisements for defendant's Eye Center, did not expressly prohibit defendant principals from placing advertisements for the Eye Center themselves or entitle plaintiff to commissions for advertising placed directly by defendant principals, the complaint was properly dismissed insofar as it was premised upon the theory that the direct placement of advertising by defendant principals constituted a breach of the agency's terms (see Interactive Props. v. Doyle Dane Bernbach, Inc., 125 A.D.2d 265, 273). The alleged agreement, while affording plaintiff an exclusive agency, did not afford plaintiff an exclusive right to sell (see id.).
Although the motion court did not expressly address the merits of the counterclaim and third-party complaint, summary adjudication thereof would not have been appropriate since the record presents triable issues as to whether plaintiff fraudulently exacted from defendants/third-party plaintiffs commissions to which it was not entitled.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.