Communications & Entertainment Corp. v. Hibbard Brown & Co.

Appellate Division of the Supreme Court of New York

Communications & Entertainment Corp. v. Hibbard Brown & Co.

202 A.D.2d 191, 608 N.Y.S.2d 214, 1994 N.Y. App. Div. LEXIS 1820

Appellate Division of the Supreme Court of the State of New York·Decided March 3, 1994·Published·Cited by 4 cases

Opinion

—Order, Supreme Court, New York County (Joan Lobis, J.),entered on or about August 16, 1993, which denied plaintiffs motion for summary judgment on liability pursuant to CPLR 3212 and which denied defendant’s cross motion for summary judgment pursuant to CPLR 3212 dismissing the complaint, unanimously affirmed, without costs.

Plaintiff, a distributor of motion pictures abroad, commenced the underlying action for breach of contract against the defendant, a New York investment banking and stock brokerage firm, seeking to recover 150,000 shares of the plaintiffs own stock, or monetary damages, from the defendant, which had received the stock as a fee pursuant to an April 1990 letter agreement between the parties for professional investment banking services in connection with the proposed acquisition by the plaintiff of a private company, Palladium Entertainment, Inc.

The IAS Court properly denied the parties’ respective motions for summary judgment as precluded by material issues of fact as to whether or not the defendant had, in fact, breached the letter agreement between the parties by failing to perform professional services required of it under that agreement, since the agreement itself specifically states that the defendant had previously rendered at least some of the [192]*192advisory services for which it had received compensation when the agreement was executed, and since both parties concededly failed to come forward with any documentary evidence conclusively establishing whether the contract had been breached.

Summary judgment was also properly denied in view of the parties’ sharply conflicting affidavits since it is well settled that it is not the court’s role to pass upon issues of credibility on a summary judgment motion (Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341).

We have reviewed the parties’ remaining claims and find them to be without merit. Concur — Murphy, P. J., Ellerin, Kupferman and Nardelli, JJ.

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—Order, Supreme Court, New York County (Joan Lobis, J.),entered on or about August 16, 1993, which denied plaintiffs motion for summary judgment on liability pursuant to CPLR 3212 and which denied defendant’s cross motion for summary judgment pursuant to CPLR 3212 dismissing the complaint, unanimously affirmed, without costs.

Plaintiff, a distributor of motion pictures abroad, commenced the underlying action for breach of contract against the defendant, a New York investment banking and stock brokerage firm, seeking to recover 150,000 shares of the plaintiffs own stock, or monetary damages, from the defendant, which had received the stock as a fee pursuant to an April 1990 letter agreement between the parties for professional investment banking services in connection with the proposed acquisition by the plaintiff of a private company, Palladium Entertainment, Inc.

The IAS Court properly denied the parties’ respective motions for summary judgment as precluded by material issues of fact as to whether or not the defendant had, in fact, breached the letter agreement between the parties by failing to perform professional services required of it under that agreement, since the agreement itself specifically states that the defendant had previously rendered at least some of the [192]*192advisory services for which it had received compensation when the agreement was executed, and since both parties concededly failed to come forward with any documentary evidence conclusively establishing whether the contract had been breached.

Summary judgment was also properly denied in view of the parties’ sharply conflicting affidavits since it is well settled that it is not the court’s role to pass upon issues of credibility on a summary judgment motion (Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341).

We have reviewed the parties’ remaining claims and find them to be without merit. Concur — Murphy, P. J., Ellerin, Kupferman and Nardelli, JJ.

Communications & Entertainment Corp. v. Hibbard Brown & Co., 202 A.D.2d 191, 608 N.Y.S.2d 214, 1994 N.Y. App. Div. LEXIS 1820 (N.Y. Ct. App. 1994).

Pincite

202 A.D.2d 191 (Communications & Entertainment Corp. v. Hibbard Brown & Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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