Penguin Group (USA) Inc. v. Steinbeck et al, No. 1:2006cv02438 - Document 32 (S.D.N.Y. 2009)

Court Description: MEMORANDUM DECISION AND ORDER denying 13 Motion for Summary Judgment. Because defendant failed to demonstrate the absence of a genuine issue regarding performance ofcontractual condition, the record does not reflect whether Penguin's obligatio n to pay ever matured. See Restatement of Law (Second) of Contracts § 225(1) (1981) ("Performance of a duty subject to a condition cannot become due unless the condition occurs or its non-occurrence is excused."). Defendant has made an insufficient showing that there are no triable issues of fact and that he is entitled to judgment as a matter of law on his breach of contract counterclaim. Defendant's motion for summary judgment on his counterclaim against Penguin is denied. SO ORDERED. (Signed by Judge George B. Daniels on 3/31/2009) (tve)