The Second U.S. Circuit Court of Appeals has affirmed a lower court’s finding that a contract between Queens Ballpark Company (QBC), LLC, which operates Citi Field (the baseball stadium of the New York Mets), was not required by contract to allow plaintiff Kosher Sports, Inc. (KSI), to sell its products at Friday and Saturday games.
While the contract explicitly set forth the plaintiff’s rights to advertising space, tickets, and freedom from competition, the contract did not address the right to sell at any particular time or place. Therefore, “the vendor had no right under the unambiguous terms of the agreement to sell its products at the park in question on Fridays and Saturdays.”
The claim centered on the allegation of KSI, a vendor of kosher food products, that QBC breached their contract and tortiously interfered with the contractual arrangement between KSI and Aramark Sports and Entertainment Services, LLC, QBC’s concessionaire.
More specifically, the plaintiff complained, among other things, that the defendant had improperly prevented the plaintiff from distributing its kosher products at games occurring at Citi Field during the Jewish Sabbath, i.e., on Friday evenings and Saturdays.
The defendant countered that it was Aramark’s decision “to deny the plaintiff’s request to operate on the Jewish Sabbath.”
Both sides moved for summary judgment, leading to the instant opinion.
The lower court found that the contract does not “give KSI the right to sell its products at all events during the ten-year term of the Agreement. The contract principally covers advertising, not product vending issues. KSI’s product-selling rights are the subject of a separate agreement between KSI and Aramark, which is not a party to this suit. The contract’s passing reference to product distribution rights, read in context, does not grant KSI any right against QBC to sell its products at the stadium; the language refers to QBC’s promise to prohibit Aramark from selling other brands of kosher products. And the fact that the contract grants KSI the right to advertise its products in one message on the scoreboard during each Mets regular season home game does not, as KSI argues, provide the right to sell its products at each and every Mets game.”
KSI appealed.
The appeals court agreed with the district court.
“The Agreement did not cover when or where KSI could sell its kosher food products,” the panel of judges held. “While it explicitly set forth KSI’s ‘rights’ to advertising space, tickets, and freedom from competition, the contract does not address the right to sell at any particular time or place. Therefore, KSI had no right under the unambiguous terms of the Agreement to sell its products at Citi Field on Fridays and Saturdays.
“In urging a contrary conclusion, KSI points out that the Agreement (1) provided ‘product distribution rights,’ (2) permitted KSI to advertise ‘during each Mets regular season home game,’ and (3) stated that Aramark would not be permitted to sell competing kosher foods ‘during events at the Ballpark as to which admission is made available to members of the general public.’ Therefore, KSI argues, the only reasonable interpretation of the Agreement read as a whole is that KSI had the right to sell its products at every regular season home game. But the language of the Agreement does not suggest that the provisions relating to advertising and freedom from competition also apply to sales.
“The Agreement also fails to provide KSI with a right to place four carts at mutually approved locations. The fully executed Agreement does not even mention cart locations. KSI relies on a September 2007 email between officers of QBC and KSI, which listed as a benefit of the deal ‘four portable cart locations in mutually agreed upon areas.’ That unsigned email was not a binding contract. To the contrary, KSI’s CEO, Jonathan Katz, wrote in response to the email that the parties would need to specify exact cart locations ‘before they sign the deal.’ Katz’s own email thus acknowledged that the Agreement, not the September 2007 email, defined the terms of the contract.”
Kosher Sports, INC. v. Queens Ballpark Company, LLC; 2d Cir. ; No. 12-2162-cv, 2013 U.S. App. LEXIS 4867; 3/12/13.
Attorneys of Record: (for plaintiff) Edward Normand, Jason Cyrulnik and Nathan Holcomb, of Boies, Schiller & Flexner LLP, Armonk, NY. (for defendant) Avery S. Mehlman, Jonathan L. Adler, and Kimberly Linkletter of Herrick, Feinstein, LLP, New York, NY.
