Opinion
No. 4667.
March 31, 2011.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered December 2, 2009, which granted plaintiffs motion for partial summary judgment on his breach of contract claim in the amount of $3,331,506, unanimously reversed, on the law, with costs, and the motion denied.
McElroy, Deutsch, Mulvaney Carpenter, LLP, New York (Michael C. Delaney of counsel), for appellant.
Holland Knight LLP, New York (Deborah C. Roth of counsel), for respondent.
Before: Gonzalez, P.J., Friedman, Moskowitz, Freedman and Román, JJ.
The court erred in granting plaintiff summary judgment on his claim for a share of defendant Samson Construction Co., Inc.'s net profits. Although, pursuant to his employment agreement, plaintiff was to receive, inter alia, 50% of Samson's net profits, the record clearly presents triable issues as to whether plaintiff has been paid the amounts sought, and whether Samson operated at a net loss in 2007. In its determination of the motion, the court should not have considered plaintiff's submissions to be more credible than those of Samson ( see generally Forrest v Jewish Guild for the Blind, 3 NY3d 295, 315; Ferrante v American Lung Assn., 90 NY2d 623, 631).