BMX WORLDWIDE, LTD. v. Coppola NYC, Inc.
| Decision Date | 25 October 2001 |
| Citation | 287 A.D.2d 383,731 N.Y.S.2d 701 |
| Parties | BMX WORLDWIDE, LTD., Formerly Known as BEAUTY MATTERS, LTD., Respondent,<BR>v.<BR>COPPOLA N. Y. C., INC., Appellant. |
| Court | New York Supreme Court — Appellate Division |
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-Corning 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.
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...Holding raised plaintiff's lack of standing in opposition to its first summary judgment motion. See BMX Worldwide v. Coppola N.Y.C., 287 A.D.2d 383, 384, 731 N.Y.S.2d 701 (1st Dep't 2001). Although Genesis Holding has not explained why it did not then move to amend its answer to add this de......
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