Scavenger, Inc.v.GT Interactive Software Corp.

Appellate Division of the Supreme Court of New York, First DepartmentDec 11, 2001
289 A.D.2d 58 (N.Y. App. Div. 2001)

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Nos. 5549-5552

December 11, 2001.

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.

Edward J. Boyle, for plaintiff-appellant.

Michael S. Oberman, for defendant-respondent.

Edward J. Boyle, for plaintiff-respondent.

Michael S. Oberman, for defendant-appellant.

Before: Sullivan, P.J., Nardelli, Andrias, Rubin, Saxe, JJ.


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 plain terms of the agreement at issue, non-refundable (see, W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 163). In addition, since the matters here in dispute are governed by an express contract, defendant's counterclaim for unjust enrichment was properly found untenable (see, GG Investments v. Revlon Consumer Prods. Corp., 283 A.D.2d 253). In any event, we agree with the motion court that there is no inequity in plaintiff's retention of guaranteed payments pursuant to a judgment affirmed by this Court (see,Scavenger v. GT Interactive, supra).

Plaintiff's demand for the guaranteed post-delivery payments for the third and fourth game, on the other hand, was properly rejected, since those games were never delivered. In this connection, plaintiff's claim, based on the letter in January of 1997, that its performance under the contracts at issue was excused by defendant's anticipatory repudiation of said contracts fails, because the letter included an opportunity to cure and was therefore not an unequivocal repudiation (cf., Brum Realty v. Takeda, 205 A.D.2d 365, 367). Further, the denial of renewal by the newly assigned replacement IAS Justice was proper since the purportedly new material, in the form offered, had little or no evidentiary value (see,Hurst v. Hilgenfeldt, 189 A.D.2d 855, 856).

We have considered the parties' remaining arguments for affirmative relief and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.