Scavenger Inc. v. Gt Interactive Software
| Decision Date | 11 December 2001 |
| Docket Number | 5549,1 |
| Parties | SCAVENGER, INC.,, v. GT INTERACTIVE SOFTWARE CORP.,5549-5550-5551-5552 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT |
| Court | New York Supreme Court — Appellate Division |
Edward J. Boyle - for plaintiff-appellant,
Michael S. Oberman - for defendant-respondent.
Order, Supreme Court, New York County (Barry Cozier, J.), entered September 8, 2000, which granted defendant's motion for reargument of a prior motion for summary judgment, and on reargument, dismissed plaintiff's fourth cause of action; order, same court and Justice, entered December 19, 2000, which, to the extent appealed from, granted plaintiff partial summary judgment dismissing defendant's first counterclaim in part and its third counterclaim in full; order, same court and Justice, entered January 8, 2001, which granted defendant summary judgment dismissing plaintiff's second cause of action and denied plaintiff's cross motion for partial summary judgment on that cause of action; and order, same court (Karla Moskowitz, J.), entered July 5, 2001, which, to the extent appealed from, denied plaintiff's motion for renewal of the prior motion and cross motion as to its second cause of action, unanimously affirmed, without costs.
We have already held that the subject agreement is divisible as to the four subject CD-ROM games and granted plaintiff judgment on its claims for guaranteed advance payments against royalties for the first and second games (see, Scavenger v GT Interactive, 273 A.D.2d 60, lv denied 96 N.Y.2d 701). The motion court, however, properly granted summary judgment dismissing plaintiff's cause of action for consequential damages. On the facts of this case, where the breach of contract was a failure to pay money, plaintiff should be limited to a recovery of the contract amounts plus appropriate interest (see, Meinrath v Singer Co., 87 FRD 422, 426). In any event, plaintiff has failed to raise any triable issue as to whether defendant, at the time it contracted with plaintiff, knew or should have known that, in the event of its breach, it would be answerable in damages for any consequent failure of plaintiff as an entity (see, Goodstein Constr. Corp. v City of New York, 80 N.Y.2d 366, 375).
The motion court properly ruled that defendant cannot, on its counterclaim for breach of contract, recoup any part of the guaranteed payments already made since those payments are, by the...
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