SAMSON LIFT TECHNOLOGIES, LLC, Plaintiff-Appellant-res, v. JERR-DAN CORPORATION, a/k/a JERRDAN CORPORATION, Defendant-res-ap, OSHKOSH CORPORATION, def-res

1188. SAMSON LIFT TECHNOLOGIES, LLC, Plaintiff-Appellant-res, v. JERR-DAN CORPORATION, a/k/a JERRDAN CORPORATION, Defendant-res-ap, OSHKOSH CORPORATION, def-res — Zeichner Ellman & Krause LLP, New York (Peter Janovsky of counsel), for appellant-res — Godfrey & Kahn, S.C., Milwaukee, WI (Anthony Baish of the bar of the State of Wisconsin admitted pro hac vice, of counsel), for respondent-appellant/res — Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered on or about March 11, 2015, which, to the extent appealed from, denied plaintiff's motion for summary judgment as to the issue of liability on its breach of contract cause of action, denied defendant Jerr-Dan Corporation's motion for summary judgment finding that plaintiff suffered no damages as a result of the alleged breach of contract, and granted defendant Oshkosh Corporation's motion for summary judgment dismissing the causes of action for fraud and promissory estoppel, unanimously affirmed, with costs.

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1188. SAMSON LIFT TECHNOLOGIES, LLC, Plaintiff-Appellant-res, v. JERR-DAN CORPORATION, a/k/a JERRDAN CORPORATION, Defendant-res-ap, OSHKOSH CORPORATION, def-res — Zeichner Ellman & Krause LLP, New York (Peter Janovsky of counsel), for appellant-res — Godfrey & Kahn, S.C., Milwaukee, WI (Anthony Baish of the bar of the State of Wisconsin admitted pro hac vice, of counsel), for respondent-appellant/res — Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered on or about March 11, 2015, which, to the extent appealed from, denied plaintiff’s motion for summary judgment as to the issue of liability on its breach of contract cause of action, denied defendant Jerr-Dan Corporation’s motion for summary judgment finding that plaintiff suffered no damages as a result of the alleged breach of contract, and granted defendant Oshkosh Corporation’s motion for summary judgment dismissing the causes of action for fraud and promissory estoppel, unanimously affirmed, with costs.

An issue of fact as to whether defendant Jerr-Dan breached the “reasonable commercial efforts” clause in section 8.2 of its amended license agreement with plaintiff precludes summary judgment in plaintiff’s favor (see Holland Am. Cruises, N.V. v. Carver Fed. Sav. & Loan Assn., 60 AD2d 545, 545 [1st Dept 1977]; see also Jones v. Community Bank of Sullivan County, 306 AD2d 679, 680-81 [3d Dept 2003). Plaintiff argues that Jerr-Dan breached the agreement by omitting plaintiff's patented sideloading vehicle retriever (SLVR) from "Covered Products" status in Jerr-Dan's distributor agreements and from dealer incentive programs and matters involving commissions based on sales and profit margins and by unfairly treating the pricing of the SLVR. However, Jerr-Dan's stated justifications for these omissions and other treatment of the SLVR raise issues of fact as to whether any of the challenged conduct, individually or in the aggregate, constitutes a breach of Jerr-Dan's obligation under the amended license agreement to use "reasonable commercial efforts."

SAMSON LIFT TECHNOLOGIES, LLC, Plaintiff-Appellant-res, v. JERR-DAN CORPORATION, a/k/a JERRDAN CORPORATION, Defendant-res-ap, OSHKOSH CORPORATION, def-res

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