Food Service Marketing, Inc., Appellant, v. National Foods, Inc., Respondent

Food Service Marketing, Inc., Appellant, v National Foods, Inc., Respondent. [639 NYS2d 378] [MAJORITY] The written brokerage agreement, memorializing the parties’ existing relationship, was drafted by defendant so as to include certain exclusivity provisions, with the end result that plaintiff would receive nearly $1,500,000 in largely unearned commissions, whereas plaintiff had only received $1,068.89 during the similar sales period a year before. On this record, the IAS Court properly determined defendant had overcome the heavy presumption that the written agreement represented the parties’ intentions (see, Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 219) and that the relevant portion of the written agreement was the product of mistake on defendant’s part. In addition to defendant’s unilateral mistake in drafting the agreement, plaintiff endeavored to commit a fraud in its efforts to carry out the clearly mistaken writing (see, 60 NY Jur 2d, Fraud and Deceit, § 9; Falk v Goodman, 7 NY2d 87, 91), and thus reformation is the appropriate equitable remedy to defeat plaintiff’s claim and prevent unjust enrichment (Rosenblum v Manufacturers Trust Co., 270 NY 79, 84-85). Concur— Milonas, J. P., Wallach, Ross and Mazzarelli, JJ.