M. Dietrich, Inc. v. Bentwood Television Corp.

Order, Supreme Court, New York County, entered October 29, 1976, denying plaintiffs motion for partial summary judgment in the amount of $100,000 upon the first cause of action, unanimously reversed, on the law, with $60 costs and disbursements to appellant, the motion granted and first cause severed. On July 24, 1972, the plaintiff and defendant Bentwood entered into a written agreement pursuant to which the plaintiff agreed to provide the services of its president, Marlene Dietrich (Dietrich), in connection with a one-woman show to be produced by Bentwood. In the first cause of action, plaintiff seeks to recover the balance of $100,000 that is due under the contract. The defendants have asserted in their answer affirmative defenses and counterclaims based upon the purported breach of the contract by plaintiff and Dietrich. More particularly, they allege that, at various publicity appearances arranged by Bentwood, Dietrich criticized and undermined the program. In her affidavit submitted in support of the motion for partial summary judgment, Dietrich attests to her full performance under the agreement. The hearsay affidavit of defense counsel does not raise any triable issue as to plaintiff’s or Dietrich’s breach of the contract. (Di Sabato v Soffes, 9 AD2d 297, 301.) Likewise, defendants’ reliance upon the prior order of Justice Hughes is misplaced. In that order, Justice Hughes merely denied plaintiff’s motion to dismiss the affirmative defenses and counterclaims as insufficient in law. The denial only established the legal sufficiency of the affirmative defenses and counterclaims. It did not establish the law of the case for purposes of this motion for partial summary judgment (Paterson v University of State of N. Y, 237 NYS2d 845, affd 18 AD2d 822). In the absence of any triable issues, partial summary judgment is now awarded on the first cause and that cause is severed accordingly. Settle order on notice. Concur—Stevens, P. J., Murphy, Capozzoli, Markewich and Lynch, JJ.