BMX WORLDWIDE, LTD. v. Coppola NYC, Inc.

CourtNew York Supreme Court Appellate Division
Citation287 A.D.2d 383,731 N.Y.S.2d 701
PartiesBMX WORLDWIDE, LTD., Formerly Known as BEAUTY MATTERS, LTD., Respondent,<BR>v.<BR>COPPOLA N. Y. C., INC., Appellant.
Decision Date25 October 2001

287 A.D.2d 383
731 N.Y.S.2d 701

BMX WORLDWIDE, LTD., Formerly Known as BEAUTY MATTERS, LTD., Respondent,
v.
COPPOLA N. Y. C., INC., Appellant.

Decided October 25, 2001.


Concur — Sullivan, P. J., Nardelli, Williams and Mazzarelli, JJ.

[287 A.D.2d 384]

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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6 practice notes
  • FTBK Investor II LLC v. Genesis Holding LLC, 810163/2011
    • United States
    • United States State Supreme Court (New York)
    • August 19, 2014
    ...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 48 Misc.3d 278answer ......
  • Horst v. Brown
    • United States
    • New York Supreme Court Appellate Division
    • April 6, 2010
    ...is whether in considering the unpleaded defense, the opponent of the defense is prejudiced thereby ( see BMX Worldwide v. Coppola N.Y.C., 287 A.D.2d 383, 731 N.Y.S.2d 701 [2001]; Allen v. Matthews, 266 A.D.2d 782, 784, 699 N.Y.S.2d 166 [1999]; Seaboard Sur. Co. v. Nigro, Bros., 222 A.D.2d 5......
  • Hussain v. Abuawwad, 2021-50826
    • United States
    • United States State Supreme Court (New York)
    • August 11, 2021
    ...claim to be surprised by the assertion of a defense predicated on the Graves Amendment (see, e.g., BMX Worldwide v. Coppola N.Y.C., 287 A.D.2d 383, 384 [1st Dept. 2001]). The motion did not raise any new issues of fact-e.g., the relationship between Benzel and the subject vehicle-thus furth......
  • Strauss v. BMW Financial Serv. Vehicle Leasing
    • United States
    • United States State Supreme Court (New York)
    • July 27, 2010
    ...prejudice or surprise associated with the assertion of a never plead affirmative defense. BMX Worldwide, Ltd. v. Coppola N.Y.C., Inc., 287 A.D.2d 383, 731 N.Y.S.2d 701 [1st Dep't 2001]. Prejudice is and surprise is ameliorated when it is shown that the plaintiff has had a full and fair oppo......
  • Request a trial to view additional results
6 cases
  • FTBK Investor II LLC v. Genesis Holding LLC, 810163/2011
    • United States
    • United States State Supreme Court (New York)
    • August 19, 2014
    ...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 48 Misc.3d 278answer ......
  • Horst v. Brown
    • United States
    • New York Supreme Court Appellate Division
    • April 6, 2010
    ...is whether in considering the unpleaded defense, the opponent of the defense is prejudiced thereby ( see BMX Worldwide v. Coppola N.Y.C., 287 A.D.2d 383, 731 N.Y.S.2d 701 [2001]; Allen v. Matthews, 266 A.D.2d 782, 784, 699 N.Y.S.2d 166 [1999]; Seaboard Sur. Co. v. Nigro, Bros., 222 A.D.2d 5......
  • Hussain v. Abuawwad, 2021-50826
    • United States
    • United States State Supreme Court (New York)
    • August 11, 2021
    ...claim to be surprised by the assertion of a defense predicated on the Graves Amendment (see, e.g., BMX Worldwide v. Coppola N.Y.C., 287 A.D.2d 383, 384 [1st Dept. 2001]). The motion did not raise any new issues of fact-e.g., the relationship between Benzel and the subject vehicle-thus furth......
  • Strauss v. BMW Financial Serv. Vehicle Leasing
    • United States
    • United States State Supreme Court (New York)
    • July 27, 2010
    ...prejudice or surprise associated with the assertion of a never plead affirmative defense. BMX Worldwide, Ltd. v. Coppola N.Y.C., Inc., 287 A.D.2d 383, 731 N.Y.S.2d 701 [1st Dep't 2001]. Prejudice is and surprise is ameliorated when it is shown that the plaintiff has had a full and fair oppo......
  • Request a trial to view additional results

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