StoreRunner Network, Inc. v CBS Corp., 2004 NY Slip Op 05339 [8 AD3d 127]

June 17, 2004

Appellate Division, First Department

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Judgment, Supreme Court, New York County (Charles Edward Ramos, J.), entered February 4, 2004, which, upon the prior grant of defendants’ motion for summary judgment, dismissed the complaint, unanimously affirmed, with costs.

The evidence conclusively established that, contrary to plaintiff’s contention, defendants made sufficient efforts to sell advertising on plaintiff’s Web site and provided incentives, motivation and encouragement to its sales force to sell said advertising in satisfaction of its contractual obligations. We note in this connection that the provision of the contract upon which plaintiff relies did not set forth objective criteria against which defendants’ efforts could be measured ( see Timberline Dev. v Kronman , 263 AD2d 175, 178 [2000]).

Plaintiff’s cause of action to recover damages based on defendants’ alleged failure to provide advertising equivalent in value to the value of the advertising credits exacted from plaintiff was properly dismissed since the credits themselves, which were negotiable by plaintiff only to defendants for advertising, had no cash value, and it is plain on this record that any claim by plaintiff for lost profits or sales resulting from the alleged overcharge would be unduly speculative ( see Lexington 360 Assoc. v First Union Natl. Bank of N.C. , 234 AD2d 187, 190 [1996]).

Summary judgment was also properly granted dismissing plaintiff’s cause of action for promissory estoppel since the oral promises upon which the cause is premised were not clear and unambiguous and could not have been reasonably relied upon by plaintiff to its detriment ( see 401 Hotel v MTI/Image Group , 251 AD2d 125 [1998]).

We have considered plaintiff’s remaining contentions and find them unavailing. Concur—Buckley, P.J., Nardelli, Andrias, Williams and Gonzalez, JJ..