Belgium v. Mateo Productions, Inc.

138 A.D.3d 479, 29 N.Y.S.3d 312

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 12, 2016
• Docket: 295 651186/10
• Status: Published

Opinions

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered July 9, 2014, which denied defendant Kon Live Touring’s (KLT) motion for summary judgment dismissing the complaint as against it, and granted plaintiff’s cross motion for summary judgment on its breach of contract claim as against KLT, modified, on the law, to deny plaintiff’s cross motion, and otherwise affirmed, without costs.

Plaintiff Lofraco Belgium (also known as Front Row Entertainment) contracted with KLT for an artist known as Akon to perform at a concert in Brussels, Belgium on December 9, 2009. Pursuant to the written contract between plaintiff and KLT, plaintiff paid $125,000 to KLT’s agent, defendant American Talent Agency (ATA). However, on the morning of the concert plaintiff was informed that Akon would not be performing because he was ill.

The relevant contract contained a provision entitled “NONPERFORMANCE,” which stated that Akon’s inability to perform due to “sickness or accident” would be considered force majeure, for which Akon would not be subject to liability; but that money would be returned for nonperformance which was not within the scope of force majeure.

KLT moved for summary judgment dismissing the breach of contract claim as against it based on the contract’s force majeure clause. Plaintiff cross-moved for summary judgment on its breach of contract claim.

In support of its motion, KLT, submitted Akon’s testimony that he did not perform at the scheduled concert due to illness, medical records from a November 16, 2009 surgery, and Akon’s surgeon’s testimony that the symptoms Akon described were consistent with tearing of scar tissue following the surgery he had undergone a few weeks before the concert date. KLT argued that, pursuant to its contract with plaintiff, it therefore had no obligation to return the monies paid for Akon’s appearance. However, KLT submitted no other evidence to substantiate Akon’s claim that he was ill, such as the hospital records of his visit to an emergency room where he claimed he was given antibiotics and painkillers. Nor did it explain its failure to submit the hospital records. Since any such records are exclusively within the control of Akon and KLT, which is solely owned by Akon, this omission renders KLT’s proof of Akon’s illness insufficient to support summary judgment. In short, KLT failed to meet its burden on the motion (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

The court properly considered plaintiff’s untimely cross motion, since it addressed the same issue that KLT addressed in its motion, i.e., whether Akon was ill (see Lapin v Atlantic Realty Apts. Co., LLC, 48 AD3d 337 [1st Dept 2008]). The record does not support KLT’s contention that plaintiff’s motion was also improper because the court had ordered plaintiff to wait until after KLT had deposed plaintiff’s principals before seeking summary judgment.

However, contrary to the dissent’s contention, plaintiff did not satisfy its burden on the cross motion. While the dissent notes that plaintiff established it paid $125,000 to secure Akon’s performance, that Akon never performed, and that the $125,000 was never repaid to plaintiff, plaintiff, in its cross motion for summary judgment, was required to establish that Akon was able to perform at the concert and was not unable to do so due to sickness. Instead, plaintiff merely pointed to gaps in KLT’s evidence — the missing medical records that would have proven Akon was ill, and thus its cross motion was improperly granted (see Torres v Merrill Lynch Purch., 95 AD3d 741 [1st Dept 2012]).

The dissent merely points to additional gaps in KLT’s evidence, such as proof of travel arrangements to demonstrate Akon intended to travel to Brussels, and notes the limited value of the affidavit of Akon’s surgeon. However, these gaps do not equate to plaintiff meeting its burden to establish an absence of a genuine issue of fact as to whether Akon was ill. Plaintiff acknowledges that it lacks any documentary evidence refuting that Akon was unable to perform, and has no evidence that he was physically capable of performing. The dissent, like the Supreme Court, appears to completely dismiss the value of Akon’s deposition testimony, yet it is “not the court’s function on a motion for summary judgment to assess credibility” (Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997]).

The dissent also stresses that Akon did not have the medical records at the time of his deposition, that he failed to produce additional medical records in discovery, and that KLT was unable to obtain the records, which may be unavailable. This lack of additional medical evidence to support Akon’s force majeure defense is why we find that KLT failed to meet its burden on its motion. At the same time, plaintiff also failed to meet its burden of proof for summary judgment. Thus, a trial is required.

Concur — Tom, J.P., Moskowitz and Richter, JJ.