GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc.

• Citation: 498 N.Y.S.2d 786,489 N.E.2d 755,66 N.Y.2d 965
• Parties: , 489 N.E.2d 755 GTF MARKETING, INC., Appellant, v. COLONIAL ALUMINUM SALES, INC., Respondent.
• Decision Date: 17 December 1985
• Court: New York Court of Appeals Court of Appeals

Page 786

498 N.Y.S.2d 786

66 N.Y.2d 965, 489 N.E.2d 755

GTF MARKETING, INC., Appellant, v. COLONIAL ALUMINUM SALES, INC., Respondent.

Court of Appeals of New York.

Dec. 17, 1985.

Howard L. Blau, Garden City, for appellant

Jessel Rothman, Mineola, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 108 A.D.2d 86, 488 N.Y.S.2d 219, should be affirmed, with costs.

By letter agreement dated March 5, 1981 plaintiff (GTF Marketing) agreed to supply defendant (Colonial Aluminum Sales) with the names, addresses and telephone numbers of homeowners in Queens, Nassau and Suffolk Counties interested in Colonial's aluminum siding at a cost of $10 per "lead." According to the agreement, GTF would mail out about 200,000 data processing cards containing "screening questions" asking the recipients whether they were planning to buy aluminum siding and other products within six months. In its verified complaint, GTF alleged that it had supplied 12,463 "leads," and that Colonial had refused to pay the sum of $124,630 which was owing to GTF.

After joinder of issue, Colonial moved for summary judgment, contending that GTF was precluded based upon factual findings in two other cases in which GTF had sued other companies on similar contracts and lost. In support of its motion, Colonial submitted the affidavit of its president, Michael Longo, in which he discussed the other actions, and to which were annexed as exhibits copies of the oral decisions in those actions containing the allegedly preclusive factual findings. In his affidavit, Longo also swore that GTF had not supplied Colonial with any "leads" as required by the contract, and that "Colonial has received nothing which would entitle GTF to collect any money under the terms of the letter" agreement. In opposition, GTF submitted only the affidavit of its attorney purporting to set forth certain facts about the formation of the contract and reciting that "the issue of whether performance under or breach of the agreement has occurred is also a question of fact." Special Term denied the motion, but a divided Appellate Division reversed. The majority held that GTF was barred by the doctrine of third-party issue preclusion and, further, that GTF's papers in opposition were insufficient to raise a triable issue of fact. We conclude that, although collateral estoppel does not apply, the Appellate Division correctly dismissed the complaint due to the insufficiency of GTF's affidavit in opposition to summary judgment.

Although the contracts in the prior actions and in this one are different, Colonial argues that the performance was the same, and that the trial judge necessarily found that GTF had fraudulently failed to send out any data processing cards. It is not clear from the decision, however, whether the trial court specifically and necessarily decided that issue, and third-party issue preclusion therefore does not lie (see, O'Connor v. G & R Packing Co., 53 N.Y.2d 278, 440 N.Y.S.2d 920, 423 N.E.2d 397). Because the...