Integrated Logistics Consultants v. Fidata Corp.

Order, Supreme Court, New York County (Alfred M. Ascione, J.), entered February 5, 1986, denying plaintiff’s motion for summary judgment on liability and granting defendants’ cross motion to amend the answer to interpose a counterclaim to recover, inter alia, for unjust enrichment, conversion, constructive trust and fraud [339] and misrepresentation, affirmed, without costs or disbursements. Contrary to the view expressed by our dissenting colleague, we find the record replete with factual inconsistencies and critical disputes which, in our view, cannot be finally resolved on the conflicting affidavits and proof adduced on the motion for summary judgment. While defendants concede that plaintiffs registration of Health Insurance Association of America (HIAA) was accepted and retained and that plaintiff has been paid substantial commissions in the past, these admissions are not conclusive in light of the claims of fraud and misrepresentation raised in the amended answer. Plaintiffs president, George Pagonis, alleges that it was he who "registered” HIAA as a client of defendants’ predecessor, Bradford National Computer Services, Inc. (Bradford). This is supported by the "statement” of Dominick Ciminello, who had been vice-president of corporate systems at Bradford and who states that he did not register HIAA as a Bradford account, although he did "handle” the account subsequently. The Bradford client registration form for HIAA, filed by Pagonis, lists his "contacts” at HIAA as Donald Jones and George Wells. However, Donald Jones, who had been HIAA’s director of statistics and manager of prevailing health care charges system, denied any knowledge of either plaintiff or Pagonis. In an affidavit sworn to November 25, 1985, he states: "Mr. Pagonis had no role to the best of my knowledge in bringing the HIAA business to Bradford” and, in a subsequent affidavit sworn to January 6, 1986, he reiterated this, stating that "the individual who was responsible for bringing the HIAA contract to Bradford was Dominick Ciminello.” Similarly, George Wells, HIAA’s director of company relations and membership, in an affidavit sworn to November 25, 1985, challenges Pagonis’ listing of Wells as one of his "contacts”, since he (Wells) did not have "any responsibility for the data processing contract between HIAA and Bradford”, adding, "this is not an area of my responsibility.” Thus, both persons listed by Pagonis on the filed Bradford client registration form sharply dispute whether he was actually responsible for securing the HIAA contract. This is a critical issue in relation to the fraud and misrepresentation claims placed in issue by defendants. The mere fact that plaintiff received payment does not mean that it was properly disbursed or earned, as assumed by the dissent. Under the circumstances, the conflicting claims presented on this record clearly do not permit summary disposition and [340] must await final resolution at trial. While plaintiff and the dissent place great emphasis upon Ciminello’s statements that it was Pagonis and not he who was responsible for bringing HIAA to Bradford, Ciminello’s credibility cannot be determined at this point on the basis of the conflicting affidavits in this record. This is especially so, when we take into account Ciminello’s present business association. He is now employed by Litton Industries, successor in interest to Infomatics, and he recently attempted to solicit the HIAA account for Litton. Ciminello worked for Infomatics before joining defendants’ predecessor, Bradford and, as stated, he serviced the HIAA account before HIAA switched to Bradford. Considering these and other factors, the drastic relief of summary judgment is inappropriate here, particularly bearing in mind the limited function of the court on such a motion as issue finding, not issue determination (Cruz v American Export Lines, 67 NY2d 1, 13; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Summary judgment relief should not be granted where there is any doubt as to the existence of a triable issue (Moskowitz v Garlock, 23 AD2d 943, 944), or where the issue is even arguable (Barrett v Jacobs, 255 NY 520, 522), since it serves to deprive a party of his day in court. This is especially so where, as here, there are salient facts within the knowledge and control of the movant which may be revealed through pretrial disclosure proceedings (see, CPLR 3212 [f]; Terranova v Emil, 20 NY2d 493, 497; Simpson v Term Indus., 126 AD2d 484; Mack v Gregory Mem. Hosp., 90 AD2d 969; Bank Leumi Trust Co. v Felner, 70 AD2d 869). In this case, there has been no discovery since the motion for summary judgment was made slightly more than one month after joinder of issue. Concur—Kassal, Ellerin and Wallach, JJ.