Opinion
17317 Index No. 650269/21 Case No. 2022–03713
02-14-2023
PHILIPS RS NORTH AMERICA, LLC, formerly known as Respironics, Inc., etc., Plaintiff–Respondent, v. SAVARA, INC., formerly known as Mast Therapeutics, Inc., Defendant, Aires Pharmaceuticals, Inc., Defendant–Appellant.
Slarskey LLC, New York (Renee Bea of counsel), for appellant. Saiber LLC, New York (Marc E. Wolin of counsel), for respondent.
Slarskey LLC, New York (Renee Bea of counsel), for appellant.
Saiber LLC, New York (Marc E. Wolin of counsel), for respondent.
Manzanet–Daniels, J.P., Kapnick, Kern, Singh, Scarpulla, JJ.
Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered July 13, 2022, which, in accordance with CPLR 3212(f), denied defendant Aires Pharmaceuticals, Inc.’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant's summary judgment motion was premature, as there was outstanding discovery with respect to a potential alter ego relationship between defendant and another corporate entity (see Wilson v. Yemen Realty Corp., 74 A.D.3d 544, 545, 903 N.Y.S.2d 42 [1st Dept. 2010] ; see also Emposimato v. CIFC Acquisition Corp., 89 A.D.3d 418, 420, 932 N.Y.S.2d 33 [1st Dept. 2011] ).
We reject defendant's argument that plaintiff's claim to an earned fee can be resolved without resolving the alter ego issue, solely on the terms of the parties’ equipment supply agreement. The parties’ submissions raise factual issues as to whether their transaction, including the consideration exchanged among the entities involved, would allow plaintiff to prevail on its claim to a fee.