BMX Worldwide, Ltd. v. Coppola New York City, Inc.

287 A.D.2d 383, 731 N.Y.S.2d 701, 2001 N.Y. App. Div. LEXIS 9934

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 2001
• Status: Published

Opinion

—Order, Supreme Court, New York County (Richard Braun, J.), entered March 22, 2001, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs or disbursements.

In this action to recover a finder’s fee, summary judgment was properly denied since a triable issue exists as to whether defendant’s obligation to pay plaintiff pursuant to the parties’ contract for the placement of a hair colorist in defendant’s salon was conditioned upon the colorist’s attainment of certain levels of weekly business bookings. As this record discloses, resolution of this issue turns upon credibility determinations inappropriate to a motion for summary judgment (see, Cochrane v Owens-Coming Fiberglas Corp., 219 AD2d 557, 559). Defendant did not waive its affirmative defense by failing to plead non-performance of a condition precedent in its answer. The failure of the condition precedent should come as no surprise to plaintiff since defendant raised the same defense in response to plaintiff’s earlier summary judgment motion. Concur — Sullivan, P. J., Nardelli, Williams and Mazzarelli, JJ.