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COOGI PARTNERS LLC, plfap, v. SOHO FASHION, LTD., def-res

10280. COOGI PARTNERS LLC, plfap, v. SOHO FASHION, LTD., def-res — Davidoff Hutcher & Citron LLP, New York (Charles Klein of counsel), for ap — Lazarus & Lazarus, P.C., New York (Michael E. Murav of counsel), for res — Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered August 14, 2012, which denied plaintiff's motion for summary judgment, unanimously affirmed, without costs.

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10280. COOGI PARTNERS LLC, plfap, v. SOHO FASHION, LTD., def-res — Davidoff Hutcher & Citron LLP, New York (Charles Klein of counsel), for ap — Lazarus & Lazarus, P.C., New York (Michael E. Murav of counsel), for res — Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered August 14, 2012, which denied plaintiff’s motion for summary judgment, unanimously affirmed, without costs.

Plaintiff established the existence of an implied-in-fact contract by submitting the 2011 sales reports generated by defendant, which indicated that royalties and advertising fees were payable at the same rates as set forth in the parties’ expired licensing agreement. In opposition, defendant submitted an affidavit by its president, who stated that defendant’s nonpayment of royalties at the quarterly intervals set forth in the initial agreement was consistent with its rejection of the royalty terms of the agreement, and that its nonpayment was acquiesced in by plaintiff while the parties negotiated the terms of a new license agreement at a new royalty rate. Thus, an issue of fact exists whether the parties agreed to the same terms and conditions as set forth in the initial agreement (see Sivin-Tobin Assoc., LLC v. Akin Gump Strauss Hauer & Feld LLP, 68 AD3d 616 [1st Dept 2009]; I.G. Second Generation Partners, L.P. v. Duane Reade, 17 AD3d 206, 208 [1st Dept 2005]; Bessette v. Niles, 23 AD3d 996 [4th Dept 2005]; Berlinger v. Lisi, 288 AD2d 523, 524 [3d Dept 2001]).

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