Sagittarius Broadcasting Corp. v. Evergreen Media Corp.

• Decision Date: 23 April 1996
• Citation: 226 A.D.2d 261,641 N.Y.S.2d 267
• Parties: SAGITTARIUS BROADCASTING CORPORATION, et al., Plaintiffs-Appellants, v. EVERGREEN MEDIA CORPORATION, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 267

641 N.Y.S.2d 267

226 A.D.2d 261

SAGITTARIUS BROADCASTING CORPORATION, et al., Plaintiffs-Appellants, v. EVERGREEN MEDIA CORPORATION, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

April 23, 1996.

Stephen F. Huff, for plaintiffs-appellants.

Everett C. Johnson, Jr., for defendant-respondent.

Before ROSENBERGER, J.P., and WALLACH, RUBIN, KUPFERMAN and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered June 9, 1995, which denied plaintiffs' motion for partial summary judgment on the first and second causes of action and to strike defendant's affirmative defenses pursuant to CPLR 3211(b), unanimously affirmed, with costs.

The IAS court properly determined that plaintiffs were not entitled to partial summary judgment on their first cause of action for breach by their licensee, defendant Evergreen, of a Licensing Agreement, wherein plaintiffs granted Evergreen the exclusive license to broadcast "The Howard Stern Show", on radio station WLUP-AM in Chicago for a three year term expiring October 14, 1995, nor entitled to partial summary judgment on their second cause of action seeking monetary recovery on an indemnification provision incorporated therein. Summary judgment was precluded by genuine triable material issues of fact, raised by conflicting affidavits of the parties, with respect to the extent of plaintiffs' knowledge and the extent of Evergreen's knowledge during negotiations and prior to the execution of the parties' Licensing Agreement regarding plans by the Federal Communications Commission (FCC) to pursue an unprecedented escalation of fines and other regulatory actions against shows that broadcast materials that the FCC found indecent, as well as an allegedly undisclosed FCC inquiry against plaintiff Sagittarius and its affiliates, WYSP-FM in Philadelphia and WJFK-FM in Washington, D.C., relating to broadcasts of The Howard Stern Show (see, Devlin v. Video Servs. Acquisition Corp., 197 A.D.2d 473, 474, 602 N.Y.S.2d 861).

Nor did the IAS court err in determining that plaintiffs were not entitled to the striking of defendant's third affirmative defense, alleging impossibility of performance, or the remaining affirmative defenses, since conflicting affidavits of the parties raise triable issues of fact as to whether defendant Evergreen was excused from performing under the agreement by the doctrine of impossibility, because of the asserted...