Opinion
11905 Index No. 653291/2016 Case No. 2020-00614
10-01-2020
PENTHOUSE GLOBAL MEDIA, INC., Plaintiff–Respondent, v. The EXECUTIVE CLUB LLC, Defendant–Appellant.
Alison I. Blaine, New York, for appellant. Pryor Cashman LLP, New York (Jamie M. Brickell of counsel), for respondent.
Alison I. Blaine, New York, for appellant.
Pryor Cashman LLP, New York (Jamie M. Brickell of counsel), for respondent.
Gische, J.P., Oing, Singh, Mendez, JJ.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered July 12, 2019, which granted plaintiff's motion for partial summary judgment on its claims for breach of contract, account stated, and trademark infringement and denied defendant's cross motion for summary judgment dismissing those claims and on its counterclaims, unanimously modified, on the law, to deny plaintiff's motion, and otherwise affirmed, without costs.
On plaintiff's motion, the facts must be viewed "in the light most favorable to defendant[ ]" ( Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 340, 937 N.Y.S.2d 157, 960 N.E.2d 948 [2011] ). Viewed in such light, it is not clear whether plaintiff performed under the parties' contract. Thus, summary judgment should not have been granted in its favor. Similarly, defendant is not entitled to summary judgment dismissing the contract claim. On defendant's motion, the facts must be viewed in the light most favorable to plaintiff (see id. ).
Summary judgment should not have been granted to plaintiff on its account stated claim. A factual issue exists as to whether the March 17, 2016 invoice was actually mailed to defendant (see Morrison Cohen Singer & Weinstein, LLP v Brophy, 19 A.D.3d 161, 161–162, 798 N.Y.S.2d 379 [1st Dept. 2005] ) or that defendant retained it without objection for a reasonable time (cf. Shea & Gould v. Burr, 194 A.D.2d 369, 371, 598 N.Y.S.2d 261 [1st Dept. 1993] [five months is reasonable time] ).
Plaintiff was not entitled to summary judgment on its trademark infringement claim. The evidence raises a triable issue of act as to whether patrons were confused that defendant was still affiliated with plaintiff ( GBL § 360–k ; see Allied Maintenance Corp. v Allied Mechanical Trades, Inc., 42 N.Y.2d 538, 543, 399 N.Y.S.2d 628, 369 N.E.2d 1162 [1977] ).
We have considered defendant's arguments as to why its motion for summary judgment on its counterclaims should have been granted and find them unavailing.