Opinion
March 3, 1994
Appeal from the Supreme Court, New York County (Joan Lobis, J.).
Plaintiff, a distributor of motion pictures abroad, commenced the underlying action for breach of contract against the defendant, a New York investment banking and stock brokerage firm, seeking to recover 150,000 shares of the plaintiff's own stock, or monetary damages, from the defendant, which had received the stock as a fee pursuant to an April 1990 letter agreement between the parties for professional investment banking services in connection with the proposed acquisition by the plaintiff of a private company, Palladium Entertainment, Inc.
The IAS Court properly denied the parties' respective motions for summary judgment as precluded by material issues of fact as to whether or not the defendant had, in fact, breached the letter agreement between the parties by failing to perform professional services required of it under that agreement, since the agreement itself specifically states that the defendant had previously rendered at least some of the advisory services for which it had received compensation when the agreement was executed, and since both parties concededly failed to come forward with any documentary evidence conclusively establishing whether the contract had been breached.
Summary judgment was also properly denied in view of the parties' sharply conflicting affidavits since it is well settled that it is not the court's role to pass upon issues of credibility on a summary judgment motion (Capelin Assocs. v Globe Mfg. Corp., 34 N.Y.2d 338, 341).
We have reviewed the parties' remaining claims and find them to be without merit.
Concur — Murphy, P.J., Ellerin, Kupferman and Nardelli, JJ.