Belgium v. Mateo Productions, Inc.
29 N.Y.S.3d 312, 138 A.D.3d 479 (2016)
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Rule of Law:
A party moving for summary judgment cannot satisfy its prima facie burden of proof merely by pointing to gaps in an opponent's evidence; it must affirmatively demonstrate the merit of its own claim or defense with its own evidence.
Facts:
- Lofraco Belgium contracted with Kon Live Touring (KLT) for the artist Akon to perform at a concert in Brussels, Belgium on December 9, 2009.
- Pursuant to the contract, Lofraco paid $125,000 to KLT's agent, American Talent Agency (ATA).
- The contract contained a 'NONPERFORMANCE' provision stating that Akon's inability to perform due to sickness would be considered force majeure, excusing him from liability.
- The contract also stated that money would be returned for any nonperformance not covered by the force majeure clause.
- On November 16, 2009, Akon underwent a surgical procedure.
- On the morning of the scheduled concert, Lofraco was informed that Akon would not be performing because he was ill.
- Akon did not perform at the concert, and the $125,000 was not returned to Lofraco.
Procedural Posture:
- Plaintiff Lofraco Belgium sued defendant Kon Live Touring (KLT) in the Supreme Court of New York County, a trial-level court, alleging breach of contract.
- KLT moved for summary judgment to dismiss the complaint, asserting the contract's force majeure clause as an affirmative defense.
- Lofraco cross-moved for summary judgment on its breach of contract claim.
- The trial court denied KLT's motion and granted Lofraco's cross-motion for summary judgment.
- KLT, as appellant, appealed the trial court's order to the Supreme Court, Appellate Division, First Department, an intermediate appellate court.
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Issue:
Does a plaintiff moving for summary judgment on a breach of contract claim meet its burden of proof by highlighting the defendant's failure to produce sufficient evidence for its affirmative defense (force majeure), without presenting affirmative evidence that the defense does not apply?
Opinions:
Majority - Tom, J.P., Moskowitz and Richter, JJ.
No. A plaintiff moving for summary judgment must satisfy its own evidentiary burden and cannot prevail simply by pointing to deficiencies in the defendant's proof. KLT failed to meet its burden on its own motion for summary judgment because its evidence of Akon's illness was insufficient, particularly due to the failure to produce hospital records that were exclusively within its control. However, the trial court erred in granting summary judgment to Lofraco on its cross-motion. Lofraco's motion was based only on pointing out these gaps in KLT's evidence. To prevail, Lofraco was required to affirmatively establish that Akon was not sick and was able to perform. Since Lofraco failed to produce any evidence to this effect, and the credibility of Akon's testimony about his illness is an issue for a jury to decide, summary judgment for the plaintiff was improper and a trial is required.
Concurring-in-part-and-dissenting-in-part - Andrias, J.
Yes. The plaintiff met its burden by establishing a prima facie case for breach of contract, which then required the defendant to prove its affirmative defense. The dissent agrees that KLT failed to meet its burden for its own motion. However, the dissent argues that Lofraco did meet its burden for its cross-motion. Lofraco established the undisputed facts of a breach: it paid, Akon did not perform, and the money was not returned. This shifted the burden to KLT to raise a triable issue of fact regarding its force majeure defense. KLT's failure to produce any objective medical evidence, relying solely on Akon's self-serving testimony, was a complete failure of proof. Therefore, no genuine issue of material fact exists, and Lofraco should be granted summary judgment.
Analysis:
This decision clarifies the evidentiary burdens on cross-motions for summary judgment in New York. It establishes that each moving party has an independent, affirmative duty to present evidence proving its entitlement to judgment as a matter of law. A plaintiff cannot win summary judgment by simply acting as a critic of the defendant's case; it must build its own case with affirmative proof. This holding makes it more difficult for parties to win before trial based on the other side's evidentiary weaknesses, reinforcing that summary judgment is only appropriate when one party's evidence is so compelling that no reasonable jury could find for the other side.
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