PEPSI-COLA DIST., INC. v. PEPSICO, INC

The IAS Court properly held that plaintiffs, independent wholesale distributors who purchase soft drinks for resale from an independent bottler not a party to this action, are not third-party beneficiaries of any contracts between the bottler and defendants, the bottler's licensor, it being settled that a sublicense is not a third-party beneficiary of a contract between a licensor and direct licensee ( see, Artwear, Inc. v. Hughes, 202 A.D.2d 76, 83-84), and since any benefits that plaintiffs derive from such contracts are incidental ( see, Burns Jackson Miller Summit Spitzer v. Lindner, 59 N.Y.2d 314, 336). Nor does defendants' alleged failure to prevent other distributors from transshipping licensed products into plaintiffs' exclusive territories state a claim for breach of fiduciary duty in the absence of a contract between the parties ( see, Mandelblatt v. Devon Stores, 132 A.D.2d 162, 167-168), or allegations showing an "`intimate relationship'" ( Brasport, S. A. v. Hoechst Celanese Corp., 747 F. Supp. 199, 202). The court also properly dismissed the causes of action for tortious interference with contract since no contracts were breached ( see, Artwear, Inc. v. Hughes, supra, at 85), and for tortious interference with prospective business relations absent allegations of culpable conduct ( see, Guard-Life Corp. v. Parker Hardware Mfg Corp., 50 N.Y.2d 183, 191). Leave to replead was properly denied in the absence of a "proposed new pleading supported by evidence as on a motion for summary judgment" ( Abbott v. Herzfeld Rubin, 202 A.D.2d 351, 352, lv dismissed in part and denied in part 83 N.Y.2d 996).

Concur — Ellerin, J.P., Wallach, Nardelli, Rubin and Mazzarelli, JJ.