Kao v. Folan

202 A.D.3d 878

163 N.Y.S.3d 194

Wei KAO, etc., appellant,

v.John F. FOLAN, etc., respondent.

2019–06994

Index No. 13117/13

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 22, 2021

February 9, 2022

Natale J. Tartamella, Smithtown, NY (Robert A. Bruno of counsel), for appellant.

Pinks, Lipshie, White & Nemeth, Hauppauge, NY (Harold I. Guberman of counsel), for respondent.

BETSY BARROS, J.P., ANGELA G. IANNACCI, CHERYL E. CHAMBERS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated March 26, 2019. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the second cause of action and dismissing the defendant's affirmative defenses and counterclaims, and for an award of attorneys’ fees.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff and the defendant are doctors who agreed in 2010 to dissolve two of their jointly held corporations. The parties structured their arrangement in two contracts dated April 20, 2010, specifically, a dissolution agreement and a consulting agreement. The dissolution agreement required the parties to refrain from conducting certain business activities with the jointly held corporations and the reimbursement of losses, including attorneys’ fees, in certain circumstances. The parties also guaranteed in the dissolution agreement that certain representations they made about the state of the jointly held corporations’ assets and liabilities were true and complete. The consulting agreement required the defendant to pay the plaintiff a consulting fee consisting, in part, of 24 monthly payments of $2,777.78. The consulting agreement provided that it would terminate automatically upon, inter alia, the plaintiff's breach of the dissolution agreement.

The plaintiff commenced this action against the defendant to recover damages for breach of contract, alleging, in the second cause of action, that the defendant breached the dissolution and consulting agreements by failing to pay all of the monthly consulting fee payments. In his answer, the defendant denied the plaintiff's substantive allegations and asserted five affirmative defenses and seven counterclaims. The plaintiff subsequently moved, inter alia, for summary judgment on the second cause of action and dismissing the defendant's affirmative defenses and counterclaims, and for an award of attorneys’ fees pursuant to the dissolution agreement. In an order dated March 26, 2019, the Supreme Court, inter alia, denied those branches of the plaintiff's motion, and the plaintiff appeals.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; see Zuckerman v. City...