Fields Plastics & Chemicals, Inc. v. Collagen Corp.

Majority

p. 1035

Fields Plastics & Chemicals, Inc., Respondent, v Collagen Corp. et al., Appellants.

Argued March 28, 1977;

decided April 28, 1977

Emanuel Dannett and Jack Weinberg for appellants.

Sidney A. Fine, David J. Rosen and Burton M. Fine for respondent.

Memorandum. We would affirm the order of the Appellate Division. The sales contract provided that respondent would be entitled to $50,000 in the event appellants have "gross receipts from the commercial production” of appellants’ “Kroytan” product "at the end of the first year of * * * commercial production.” Appellants admit that they engaged in the manufacture and sale of the product being developed for the required period, but argue that this activity was limited to "trial runs of the product” and never reached "commercial production levels”. The sales agreement does not require that a certain level of production be reached, but merely provides for payment in the event appellant has "gross receipts from the commercial production” of the product. Although appellants did not produce to a full capacity, there is no dispute that they engaged in some sort of commercial production. Nothing in the conclusory statements contained in

p. 1036

the affidavits raises a genuine triable issue of fact. Accordingly, summary judgment was properly granted.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, with costs, in a memorandum.