New York Pepsi-Cola Distributors Ass'n v. Pepsico, Inc.

Judgment, Supreme Court, New York County (Ira Gammerman, J.), entered July 2, 1996, dismissing the action for failure to state a cause of action, unanimously affirmed, with costs.

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 sublicensee is not a third-party beneficiary of a contract between a licensor and direct licensee (see, Artwear, Inc. v Hughes, 202 AD2d 76 , 83-84), and since any benefits that plaintiffs derive from such contracts are incidental (see, Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 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 AD2d 162 , 167-168), or allegations showing an " 'intimate relationship’ ” (Brasport, S. A. v Hoechst Celanese