Mammoth Entertainment, Inc. v Global Poverty Project, Inc.

[*1] Mammoth Entertainment, Inc. v Global Poverty Project, Inc. 2020 NY Slip Op 50799(U) Decided on July 8, 2020 Supreme Court, New York County Lebovits, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 8, 2020
Supreme Court, New York County

Mammoth Entertainment, Inc., Plaintiff,

against

Global Poverty Project, Inc. d/b/a GLOBAL CITIZEN, Defendant.



655970/2017



Law Office of Aaron M. Schlossberg, Esq., PLLC, New York, NY (Aaron M. Schlossberg of counsel), for plaintiff

David M. Lamb, Esq., New York, NY for defendant.
Gerald Lebovits, J.

The following e-filed documents, listed by NYSCEF document number (Motion 006) 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 199, 200, 242, 243, 244

were read on this motion to/for SUMMARY JUDGMENT

The following e-filed documents, listed by NYSCEF document number (Motion 007) 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241

were read on this motion for SUMMARY JUDGMENT.

This action primarily involves a contract dispute between plaintiff Mammoth Entertainment, Inc. (Mammoth) and defendant Global Poverty Project, Inc. (Global). In defendant's motion (motion sequence 006), Global seeks summary judgment under CPLR 3212, dismissing Mammoth's sole remaining cause of action, a breach-of-contract claim. In plaintiff's [*2]motion (motion sequence 007), Mammoth seeks summary judgment in its favor on that claim under CPLR 3212, and various forms of legal and equitable relief. For the reasons stated below, both motions are denied.

BACKGROUND

The following description is derived from the October 22, 2019 affidavit of Brian Mencher (Mencher Aff.; NYSCEF No. 154), an associate general counsel of Global who was involved in the negotiation and drafting of the contract at issue.[FN1]

Global is a non-profit international organization whose goal is to catalyze a worldwide movement to end poverty (Mencher Aff., ¶ 8). Since 2012, one of Global's projects has been the Global Citizen Festival, an annual music festival held in Central Park of New York City, aimed at advocating the organization's mission (id., ¶ 13). In 2016, Global also held a Global Citizen Festival in Mumbai, India (id., ¶ 15). Thus, in early 2016, Global planned for the production of an hour-long documentary film featuring footage from the 2016 New York and Mumbai music festivals (Long Form Content), as well as several short vignettes focusing on various artists who would perform in these festivals along with interviews (Short Form Content; and together with Long Form Content, collectively, GC Content) (id., ¶ 20). Because Global does not have significant financial resources, it sought outside assistance "to secure financing for the project" (id., ¶ 22). As part of the financing, Global hoped that it could obtain guaranteed online distribution, as this was the best platform to reach its audience (id., ¶ 25). Hence, Global began looking for vendors who could assist it in "shopping" the GC Content to potential distributors that would be willing to distribute the GC Content on their platform(s) and to provide upfront financing to cover the production cost (id.).

In August 2016, Global began to communicate with Todd Courtney, the chief executive officer of Mammoth, a company that works with artists and entities in the entertainment industry to produce films and related projects, about the possibility of engaging it to help in securing financing and distribution. Courtney represented that Mammoth had a pre-existing deal with Complex Media Inc., Verizon Inc. and Hearst Media Inc. (collectively, Complex), and that the GC Content could be "grandfathered" into this deal (id., ¶ ¶ 26-27). The parties engaged in extensive negotiation and, on October 26, 2016, signed an agreement styled as a "term sheet" (Agreement; NYSCEF No. 183). This agreement included the following language in the second paragraph on its first page: "For the avoidance of doubt, the terms herein are subject to [Mammoth] securing financing and distribution of the [GC Content] in amounts and through distribution channels acceptable to [Global] in [its] sole discretion ('Conditions Precedent')" (Agreement at 1). The same paragraph also provides that "[Mammoth's] sole right herein prior to satisfaction of the Conditions Precedent is to represent any [Global] concepts and content provided to [Mammoth] by [Global] on a non-exclusive basis for a reasonable period of time or until such right is terminated by [Global] in [its] sole discretion at anytime" (id.).

Shortly after the parties executed the Agreement, problems began to form in their relationship. As a result, Mammoth did not close a deal with the potential distributor and financier it had identified (i.e., Complex) in time for the Mumbai music festival that took place on November 18, 2016 (Mencher Aff., ¶ ¶ 53-58). Thus, Global needed to engage the support of a third party, Hyde Park Entertainment Inc. (Hyde Park), to provide funding and production assistance for the Mumbai festival (id., ¶ ¶ 59-61). In the transaction, Global agreed to provide Hyde Park with partial ownership in the GC Content (id., ¶ 62). After the Mumbai festival took place, Global informed Mammoth that the draft agreement being negotiated with Complex that was styled as "Exhibit A — Description of Segments; Specifications; Fees" (Subsequent Draft Agreement; NYSCEF No. 188), as well as the Agreement (between Global and Mammoth), needed to be revised to reflect Hyde Park's partial ownership of and its role in the GC Content (id., ¶ ¶ 65-66). Mammoth rejected the inclusion of Hyde Park, despite Global's explanation that Hyde Park's incorporation into the deal was necessary to provide Mammoth with a clean chain of title in the GC Content (id., ¶ ¶ 67-69). In the ensuing months, despite protracted negotiations, the parties were unable to reach mutually acceptable terms for the deal documents (id., p 70). Due to the impasse, and agreeing with Mammoth's sentiment that it was "best for everyone to cut their losses," on February 28, 2017, Global sent Mammoth a notice of termination of the Agreement (id., ¶ ¶ 73-78; Termination Notice).

Mammoth commenced this action, on September 21, 2017, by filing an Order to Show Cause for Temporary Restraining Order and Preliminary Injunction (motion sequence 001; NYSCEF No. 9). On December 15, 2017, Mammoth moved for summary judgment on all nine causes of action in its complaint against Global (motion sequence 002; NYSCEF No. 41). Global opposed the summary judgment motion and cross moved to dismiss the complaint (NYSCEF No. 54). On January 24, 2018, this court denied Mammoth's motion for preliminary injunction (NYSCEF No. 74). Thereafter, on April 20, 2018, this court denied Mammoth's summary judgment motion in its entirety, and granted Global's cross-motion to dismiss all claims of the complaint except for the breach of contract claim (Prior Decision; NYSCEF No. 96). On October 22, 2019, Global moved for summary judgment to dismiss the remaining breach of contract claim (motion sequence 006; NYSCEF No. 152). The next day, on October 23, 2019, Mammoth also moved for summary judgment on the breach of contract claim; and it sought various forms of legal and/or equitable relief requested in its prior motion for preliminary injunction (motion sequence 007; NYSCEF No. 181).

DISCUSSION

In a summary judgment motion, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). If the movant fails this showing, the motion should be denied (id.). However, if this showing is made, the burden then shifts to the party opposing the motion to produce sufficient evidentiary proof to establish the existence of a material issue of fact which requires a trial of the action (id.).

In weighing a summary judgment motion, "evidence should be analyzed in the light most favorable to the party opposing the motion" (Martin v Briggs, 235 AD2d 192, 196 [1st Dept [*3]1997]). The motion should be denied if there is any doubt about the existence of a material issue of fact (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). Where different conclusions may reasonably be drawn from the evidence, the motion should also be denied (Jaffe v Davis, 214 AD2d 330 [1st Dept 1995]).

As acknowledged by the parties, the primary dispute on these motions is about how to interpret "securing," as used in the Conditions Precedent clause of the Agreement. As noted above, the Conditions Precedent clause states that the terms set forth in the Agreement are subject to Mammoth "securing financing and distribution" of the GC Content in amounts and through distribution channels acceptable to Global in its sole discretion, and that Mammoth's right prior to the satisfaction of such clause is limited to representing Global's concept and content provided to Mammoth by Global "on a non-exclusive basis for a reasonable period of time until such right is terminated" by Global in its sole discretion (Agreement at 1).

The law for contract interpretation is well established. Generally speaking, when the parties set down their agreement in a "clear, complete document, their writing should . . . be enforced according to its terms . . . [and extrinsic evidence] is generally inadmissible to add to or vary the writing" (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). Thus, it is not proper for the court to rewrite the parties' agreement, and the best evidence of the agreement is their written contract (Greenfield v Philles Records, Inc., 98 NY2d 562, 569 [2002]). In that regard, the courts "give effect to the contract's language and the parties must live with the consequences of their agreement [and if] they are dissatisfied . . . the time to say so [is] at the bargaining table" (Eujoy Realty Corp. v Van Wagner Communications, LLC, 22 NY3d 413, 424 [2013]) [internal quotation marks and citations omitted]). An ambiguous term in a contract "must be susceptible of more than one commercially reasonable interpretation . . . by examining the entire contract . . . in light of the obligation as a whole [and] in deciding the motion, [t]he evidence will be construed in the light most favorable to the one moved against" (Perella Weinberg Partners LLC v Kramer, 153 AD3d 443, 446 [1st Dept 2017] [internal quotation marks and citations omitted]). As a last resort in determining the meaning of an ambiguous contractual term, courts sometimes construe the term against the drafter, a doctrine known as contra proferentum. (Schron v Troutman Saunders LLP, 97 AD3d 87, 93 [1st Dept 2012] affd, 20 NY3d 430 [2013].)

I. Global's Summary Judgment Motion (motion sequence 006)

A. Arguments of the Parties

1. Global

In its moving brief in support of summary judgment (Global Brief; NYSCEF No. 153), Global argues that upon a review of the Agreement as a whole, "it is plain that the Conditions Precedent clause is only susceptible to one reasonable interpretation — namely that Mammoth was required to guarantee distribution and financing before the remainder of the [contractual] terms went into effect" (Global Brief at 9 [emphasis added]). More specifically, Global argues that, under any other interpretation, Global would have risked trading its valuable ownership and licensing interests in the GC Content, as set forth in the "Intellectual Property Ownership and Distribution" section of the Agreement, if Mammoth were granted the ownership right and [*4]exclusive license to distribute and exploit the GC Content for "merely [identifying] Complex as a potential source of distribution or financing," and that such interpretation would be commercially unreasonable (id. at 10). In other words, Global argues that it would not make any commercial sense for it to trade ownership and licensing rights in the GC Content "without a guarantee of some value in return, and [that] it is unreasonable to believe that the parties expected the Conditions Precedent clause to be interpreted as such" (id.).

Global also argues that, according to the definitions enumerated in the Ballentine's Law Dictionary and the Merriam-Webster online dictionary, the word "secure" is synonymous with "guarantee" (id. at 12, citing references). Global further argues that the Second Department has found that the word "secure," as used in a conditions precedent clause in a property purchase agreement, was unambiguous, and that "such clause required a formal, written agreement to satisfy the conditions" (id. at 12-13, citing Carpenito v Balini, 145 AD2d 458 [2d Dept 1988]). Global asserts that the plain meaning of the Conditions Precedent clause requires Mammoth to "guarantee distribution and financing by obtaining a binding signed agreement" (id. at 13).

Global also attacks Mammoth's interpretation of the Conditions Precedent clause, as reflected in Courtney's testimony that it was his belief that the clause was satisfied on the day he Agreement was signed (id. at 13-14). Global asserts such interpretation would render the clause "completely meaningless" and "superfluous" (id.; citing Suffolk County Water Auth. v Village of Greenport, 21 AD3d 947, 948 [2d Dept 2005], for the proposition of law that the basic principle of contract interpretation is that an interpretation which renders contractual language superfluous is untenable). Thus, Global argues that if the Conditions Precedent had already been satisfied upon signing of the Agreement, as contended by Mammoth, it would run afoul of the "cardinal principle" against interpreting contracts so as not to render the provisions therein superfluous and meaningless (id. at 14-15). Global also argues that courts generally consider conditions precedent clauses important and require them "be performed literally" (id. at 15; citing MHR Capital Partners LP v Presstek, Inc., 12 NY3d 640, 645 [2009]).

Alternatively, Global argues that, if this court considers extrinsic evidence beyond the examination of the Agreement, the hundreds of emails exchanged between the parties during the relevant time frame (before and after the Agreement was signed) show that "both parties understood the Conditions Precedent clause to have only one meaning, and that such meaning required guaranteed distribution and financing" (Global Brief at 15). Pointing to various email exchanges, many of which are filed by Global as redacted exhibits (NYSCEF Nos. 166-180; exhibits 11-25), Global asserts that the circumstances surrounding the signing of the Agreement show that "all the parties understood the Conditions Precedent clause to require committed, guaranteed financing and distribution," and that there is "no [documentary] evidence supporting Mammoth's proposed interpretation of the Conditions Precedent clause" because Mammoth has failed to produce relevant emails to support its position (id., at 16-18, 25-28).

Additionally, Global argues that there is no issue of fact whether Mammoth obtained "guaranteed distribution and financing" pursuant to the Conditions Precedent clause, because Mammoth never obtained "a signed contract" with Complex obligating Complex to fund and distribute the GC Content (id., at 20). Specifically, Global asserts that even though Mammoth [*5]contends that the June 26, 2016 contract between Complex and Mammoth (Complex Contract) is evidence that if had "secured" distribution, the language in the Complex Contract excludes the GC Content that is specifically addressed in the October 26, 2016 Agreement between Global and Mammoth (id.). Global also points out that Courtney has testified that the Complex Contract was signed before he introduced Global's representative to Complex in September 2016, and that there was no prior business relationship between Global and Complex (id. at 21). Global further asserts that even if the Conditions Precedent clause is ambiguous, its meaning can be determined by looking at the Agreement as a whole, and that "employing the standard doctrines of contract construction reveals the parties' intent that [such] clause required guaranteed distribution and financing" (id. at 22).

2. Mammoth

In opposition to Global's motion (Mammoth Opp.; NYSCEF No. 199), Mammoth contends that it has satisfied the Conditions Precedent clause by securing Complex's "written promise to finance and then distribute the content, and the Agreement became binding" (Mammoth Opp., ¶ 6). In support thereof, Mammoth points to the October 23, 2017 Mencher affidavit filed in opposition to plaintiff's motion for preliminary injunction (2017 Mencher Aff.; NYSCEF No. 194) in which Mencher stated: "I reiterated several times that [Global] either needed an agreement with Mammoth stating that funding was confirmed and providing for some payment upon execution, or the agreement needed to be a pure shopping deal granting Mammoth no rights in the GC Content until financing and distribution were secured" (Mammoth Opp, ¶ 7; quoting 2017 Mencher Aff., ¶ 24 [emphasis added]). Mammoth also contends it has satisfied the latter option by securing financing and distribution with Complex, and that Global "accepted and ratified" Mammoth's satisfaction of the clause by "forwarding to Mammoth video footage of the short form content" pursuant to the terms of the Agreement (Mammoth Opp., ¶ 6).

Mammoth also points out that Global and Complex subsequently "entered into a contract mirroring the terms of the deal that Mammoth had conceived, developed and negotiated on behalf of Global" (namely the Subsequent Draft Agreement), where such contract provided for the payment by Complex to Global the sum of $534,100 ($264,700 for the New York content and $289,400 for the Mumbai content), and that such payment is "prima facie evidence" that Global was satisfied with the deal that Mammoth had negotiated with Complex on Global's behalf (id., ¶¶ 6-8). Mammoth further asserts that Global acknowledged that Mammoth has fulfilled its obligations under the Agreement, by representing "in its email communications with Mammoth that it was satisfied with Mammoth's performance and was ready to move forward with the project" (id., ¶ 9; referencing generally to the 32-page "email chain" consisting of hundreds of emails exchanged between the parties that was attached as exhibit C [NYSCEF No. 187] to the Courtney Affidavit dated October 22, 2019).

Additionally, Mammoth asserts that it "oversaw and facilitated negotiations" between Global and Complex "to secure funding and distribution" of the GC Content pursuant to the Subsequent Draft Agreement, but Global "began to invent issues and concerns" in an attempt to demand modification of that agreement, seeking terms more satisfactory to Global so as to stall and avoid its performance under the Agreement (id., ¶ 11). When Mammoth refused to modify, Global breached the Agreement by sending the Termination Notice in February 2017, even [*6]though "the Agreement did not contemplate such right to terminate" (id.). In August 2017, Mammoth received an email reflecting a remittance (Remittance; referencing a document annexed as exhibit E to the Courtney Affidavit; NYSCEF No. 189) which showed a transaction wherein Complex paid Hyde Park $534,100, "the same amount that Mammoth had conceived as a budget" for Global to secure financing and production of the project (id., ¶ 12). The Remittance indicated that Mammoth was "accredited as the payee," but Global "changed the payee from Mammoth to Hyde Park;" yet Mammoth is entitled to its ten percent fee ($53,410)under the Agreement, and Global breached the Agreement by refusing to pay Mammoth (id.).

Mammoth also contends that because it is undisputed that Global (namely Mencher) was the drafter of the Conditions Precedent clause, any ambiguity must be construed against the drafter under the contra preferentum doctrine (id., ¶ ¶ 15-16). Mammoth further contends that Global has "concede[d] and relinquished" all rights to demand upfront payment upon execution of the Agreement, because "the parties did not intend or contract [under the Agreement] for the term 'secure' to mean the more stringent standard of 'guarantee'" (id. at ¶ 17; referencing 2017 Mencher Aff., ¶ 24).[FN2] Therefore, Mammoth contends that the parties intended the term "secure" in the Conditions Precedent clause to mean "assure the financing and distribution" of the GC Content, which was achieved and satisfied by Mammoth when it signed the Complex Agreement, negotiated the terms of the License Agreement with Complex on behalf of Global, and Complex agreed to pay Global $534,100 (Mammoth Opp., ¶¶ 17, 27).

B. Analysis

As an initial matter, assuming that there is an ambiguity in the Agreement, the contra preferentum doctrine raised by Mammoth is inapplicable to this case. It has been held that the doctrine applies where one party drafted the contract and the other party "had no voice in the selection of its language" (Coliseum Towers Assoc. v County of Nassau, 2 AD3d 562, 565 [2d Dept 2003] [doctrine inapplicable where parties negotiated contractual terms]). Here, the parties acknowledge that they extensively negotiated the Agreement and, thus, Mammoth was afforded an opportunity to voice any concern it might have with the language used therein, including the Conditions Precedent clause, such that the terms of the Agreement were not forced upon it, particularly in light of the fact that both parties are sophisticated businesses.

Next, while both parties apparently claim that the term "secure" is unambiguous (as used in the Conditions Precedent clause), the issue of whether such term is ambiguous is a question of law to be determined by the court (W.W.W. Associates, 77 NY2d at 162 [citations omitted]). [*7]Focusing solely on the term "secure" in isolation, it is difficult to determine whether the term is synonymous with "guarantee," as argued by Global, or simply means "assure," a less stringent standard than "guarantee," as contended by Mammoth. Thus, the parties' divergent interpretation on the meaning of "secure" is of limited value. However, the law is clear that when making a determination, the court should examine the contract as a whole, consider the relations of the parties and the circumstances under which the contract was executed, so that the "reasonable expectations" of the parties are realized (Currier, McCabe Assoc., Inc. v Maher, 75 AD3d 889, 890-892 [3d Dept 2010] [internal citations omitted]).

As discussed above, Global argues that when the Agreement is viewed as a whole, interpreting the term "secure" to mean "guarantee" makes commercial sense because without a guarantee of some value in return, it would be unreasonable for it to risk its valuable ownership and licensing interests in the GC Content, if Mammoth were granted some of these rights and interests for merely "identifying a potential source" of distribution of financing. When this argument is combined with the principle of contract interpretation that a contractual provision should not be interpreted in a way so as to render it superfluous and meaningless, Mammoth's counter argument that the Conditions Precedent clause was satisfied on the date of execution of the Agreement seems untenable.

While Global's argument centered on "superfluous" and "meaningless" is persuasive, its characterization and assertion that it otherwise would have to grant Mammoth a right and license in the GC Content for merely "identifying a potential source" is flawed. Indeed, Mammoth contends, among other things, that it had a pre-existing relationship with Complex (as reflected by the June 2016 Complex Contract), it introduced Global to Complex (in September 2016), and pursuant to the October 2016 Agreement, any and all business opportunities contemplated by Global and Complex "shall be conducted with the ongoing involvement" of Mammoth, and that Mammoth was instrumental in negotiating the fees ($535,100) payable to Global by Complex (as reflected in the Subsequent Draft Agreement). In light of Mammoth's contention and the parties' conflicting positions, it raises a material issue of fact as to whether Mammoth has fulfilled its obligations, at least in part, under the Agreement.

Citing to the 2017 Mencher Affidavit, Mammoth also contends that it has satisfied the "latter option" of the Conditions Precedent clause, as stated in paragraph 24 of such affidavit, by "securing financing and distribution" with Complex; that Global has "accepted and ratified" the same by forwarding the GC Content to Complex; and that Mencher could have used the word "guarantee" if he had truly intended Mammoth to guarantee finance and distribution (Mammoth Opp., ¶ 6). In its reply (Global Reply; NYSCEF No. 242), Global argues that Mammoth's assertion that Global has somehow waived its right to demand upfront payment or "forewent any requirement of guarantee" was an "wholly unsupported leap" on the part of Mammoth that Global "has relinquished altogether for guaranteed distribution and financing in order for the remaining terms under the [Agreement] to vest" (Global Reply at 9). Global also argues that Mammoth's interpretation of Mencher's statement is "entirely irrational" and runs "directly counter" to other extrinsic evidence, including the email exchanges between the parties, and that Mammoth should have looked at the Mencher Affidavit that was filed in October 2019 along with this motion, instead of the 2017 Mencher Affidavit (id., at 9 & n 4).

Global's arguments are unpersuasive. First, Global fails to adequately explain why Mammoth cannot cite to the 2017 Mencher Affidavit, and why Mencher needed to file the 2019 affidavit that appears to proffer a different explanation or interpretation of his email exchanges with Courtney in September 2016. Secondly, the 2017 Mencher Affidavit is admissible evidence because it is written by a party in this action and, as such, may be used by Mammoth to challenge the party's (Mencher's) position. Thirdly, upon a review of the hundreds of email exchanges between the parties, some of which are now redacted by Global, it appears that the parties have conflicting interpretations of their obligations under the Agreement. Because there are disputed material issues of fact arising therefrom, summary judgment is inappropriate.

Finally, with respect to the Remittance under which Hyde Park was substituted as payee in the place of Mammoth, Global argues that the payment amount was "developed by a party other than Mammoth based on the cost of the project being contemplated," which has "nothing to do with Mammoth's efforts to secure distribution and financing" (Global Reply at 14). Global also argues that it "ultimately received funds in the amount that the parties were initially contemplating provides no evidence whatsoever that Mammoth was responsible for those funds" (id). However, as noted above, Mammoth contends that the Subsequent Draft Agreement, which reflects "the exact same amount of financing Mammoth secured on Global's behalf," constitutes "prima facie evidence" that Global was satisfied with the deal that Mammoth had developed with Complex on behalf of Global (Mammoth Opp., ¶ 6). Based upon the foregoing, there exists a disputed issue of fact as to whether Mammoth's efforts resulted in a benefit to Global, and whether Global's refusal to pay Mammoth is a breach of the Agreement.

Because there are conflicting reasonable interpretations of a contractual provision and there exist many disputed issues of fact which may require a trial, entry of summary judgment in favor of Global is inappropriate. Global's motion is denied.

II. Mammoth's Summary Judgment Motion (motion sequence number 007)

In moving for summary judgment, Mammoth largely repeats its arguments in opposition to Global's summary-judgment motion (discussed above) (see (Mammoth Brief; NYSCEF No. 198). Mammoth also seeks to bolster these arguments through an affidavit by Jason W. Janego, a practicing attorney who purports to have extensive experience in the entertainment and media industry (Janego Affidavit; NYSCEF No. 182). In opposition to Mammoth's motion (Global Opp.; NYSCEF No. 202), Global argues, among other things, that the motion must be denied as untimely. Global also cross moves to strike the Janego Affidavit (NYSCEF No. 201; cross motion to strike). Mammoth's motion is denied; Global's cross-motion to strike is denied as academic.

This court's part rules of this court require summary-judgment motions to be made "no later than 60 days after the filing of the note of issue." Here, Mammoth filed its note of issue on August 23, 2019, but did not file its summary judgment motion until October 23, 2019, 61 days later. Global contends that since Mammoth fails to provide good cause for failing to file its motion timely, the motion must be denied. This court agrees (see Brill v City of New York, 2 NY3d 648, 652 [2004]).

Mammoth contends that this court should disregard Mammoth's one-day delay as de minimis (see NYSCEF No. 247 at 6-7). But the Court of Appeals and the Appellate Division have emphasized that the "legislatively imposed deadline for filing summary judgment motions must be strictly filed" (Azcona v Salem, 49 AD3d 343, 343 [1st Dept 2008]; accord Milano v George, 17 AD3d 644, 645 [2d Dept 2005] [affirming denial of summary-judgment motion on the ground that the motion was filed one day after the applicable deadline]). Mammoth also asserts that the motion should be considered timely (or any delay considered to be excused by good cause) because it was filed exactly two months after Mammoth filed its note of issue. But this court's part rule sets a deadline of 60 days, not two months. And this assertion—at best a claim of law office failure—does not qualify as good cause exusingMammoth's failure to file its motion timely (see Azcona, 49 AD3d at 343). Mammoth's motion for summary judgment is denied. Global's cross-motion on motion sequence 007 to strike the Janego Affidavit is therefore denied as academic.[FN3]

Accordingly, for the foregoing reasons, it is hereby

OREDERED that defendant's motion for summary judgment under CPLR 3212 (motion sequence 006) is denied; and it is further

ORDERED that plaintiff's motion for summary judgment under CPLR 3212 (motion sequence 007) is denied; and it is further

ORDERED that defendant's cross-motion on motion sequence 007 to strike the affidavit of Jason W. Janego is denied as academic.

7/8/2020 Footnotes

Footnote 1: As discussed further below, Mammoth has a somewhat different account of the relevant background.

Footnote 2: As discussed above, paragraph 24 of the affidavit stated, in relevant part, that Mencher repeatedly said in his email exchanges with Courtney in September 2016 that Global "either needed an agreement with Mammoth stating that funding was confirmed and providing for some payment upon execution, or the agreement needed to be a pure shopping deal granting mammoth no rights in the GC Content until financing and distribution were secured."

Footnote 3: This court notes that there is considerable force to Global's arguments in favor of striking the Janego Affidavit as merely drawing inadmissible legal conclusions about the meaning of a contractual term (see NYSCEF No. 202 at 14-17); but given the denial of Mammoth's summary-judgment motion as untimely, this court need not resolve that issue here.