While many breach of contract cases are resolved by motions to dismiss or summary judgment, a recent decision from the Appellate Division, First Department, Kramer v. Greene, (1st Dep’t Aug. 11, 2016), has shown that when it comes to summary judgment, the path of least resistance is often haunted.

In the underlying action, pending before New York County Commercial Division Justice Shirley Werner Kornreich, an attorney brought breach of contract, quantum meruit, and unjust enrichment claims against the literary agent for Stephen King. The plaintiff, Jay Kramer, provided legal and professional services to defendants in connection with various literary deals for Mr. King. Mr. Kramer was compensated based on commissions from the deals he assisted in. However, after Mr. Kramer was terminated, allegedly at Stephen King’s insistence, defendants ceased paying the commissions on completed works. Mr. Kramer alleged that the parties had an oral agreement which entitled him to commissions after termination. Defendants maintained that all compensation, even on completed work, terminated with Mr. Kramer’s employment.

Defendants moved for summary judgment, and the trial court granted that motion on the basis that there was no meeting of the minds regarding commissions, but the First Department disagreed and reversed. In reaching its conclusion, the First Department made clear that while the plaintiff bears the burden at trial, the moving party “bears the burden of demonstrating that its motion for summary judgment should be granted to the absence of any genuine issue of material fact.” In overturning the trial court, the First Department emphasized that defendants failed to present any evidence regarding the terms of their agreement with plaintiff and instead focused on the evidence that plaintiff purportedly needed to proffer to avoid summary judgment. In making this argument, the defendants focused on deposition testimony which suggested that plaintiff’s claims were based on industry custom rather than an alleged oral agreement. However, the defendants did not submit their own evidence to contradict plaintiff’s position or particularize the terms of their agreement with Plaintiff. This failure proved to be defendants’ downfall. As the First Department explained, “Plaintiff negotiated his agreement with Greene alone, and Greene was not deposed and did not submit an affidavit in support of defendants’ position that plaintiff’s entitlement to a share of commissions ended when his employment was terminated.”

An affirmative motion for summary judgment cannot be based solely on the evidence that the plaintiff does or does not have, it must also affirmatively show that no reasonable trier of fact could find for the plaintiff. This usually requires that the defendant develop and submit its own evidence in support of its summary judgment motion. Unfortunately for Steven King’s literary agents, all argument and no evidence did not result in a dull summary judgment dismissal.