Hanneford Circus, Inc. v. Cabar Circus Promotions, Ltd.

201 A.D.2d 456, 607 N.Y.S.2d 128, 1994 N.Y. App. Div. LEXIS 995

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 1994
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Westchester County (Coppola, J.), entered December 3, 1991, which granted the plaintiff’s motion for partial summary judgment on the issue of liability.

Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court properly awarded the plaintiff summary judgment. It is clear from the facts alleged that the defendant did not procure the right to present a circus at the Westchester County Center for 1990 and assign that right to the plaintiff, as was required by the contract at issue. Further, the court properly dismissed the defendant’s various counterclaims, as none were supported by sufficient evidentiary facts (see, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). We disagree with the defendant that the failure to present evidentiary facts should be excused pursuant to CPLR 3212 (f) on the ground that the facts needed are exclusively within the knowledge of the plaintiff. Here, the action was pending for over a year before the motion for summary judgment was made, and the defendant failed to avail itself of any opportunities to obtain disclosure of such facts (see, Stevens v Hilmy, 185 AD2d 840; Yu v Forero, 184 AD2d 506; 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 3212.18). Bracken, J. P., Sullivan, Krausman and Goldstein, JJ., concur.