Belgium v Mateo Productions

138 A.D.3d 479 (2016)

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Belgium v Mateo Productions

New York Supreme Court, Appellate Division
138 A.D.3d 479 (2016)

Facts

Lofraco Belgium a.k.a. Front Row Entertainment (LB) (plaintiff) contracted with Kon Live Touring (KLT) (defendant) for the artist Akon to perform at a concert in Belgium on December 9, 2009. KLB was solely owned by Akon. LB paid $125,000 to KLT as part of the contract. However, KLT informed LB on the morning of the concert that Akon could not perform because he was ill. Under the contract’s force majeure provision, Akon was excused from performing if he was ill. Akon could therefore not be subject to liability under this contract if his nonperformance was due to illness. However, KLT did not provide any evidence to substantiate the claim that Akon was ill. KLB only submitted Akon’s testimony that he could not perform because he was ill, medical records from a prior surgery and Akon’s surgeon’s testimony describing Akon’s tissue injury. LB sued KLT for breach of contract on the basis that KLT did not substantiate Akon’s illness. LB, for its part, did not have, nor could it produce, evidence to establish that Akon was able to perform at the concert and was not unable to do so due to illness. KLT moved to dismiss the suit on summary judgment, citing the force majeure provision. Akon testified at the hearing on the motion that he was ill and that he visited an emergency room where he was given antibiotics and painkillers, but he provided no medical records about the visit or his illness. LB filed a cross motion for summary judgment on its claim. The New York Supreme Court denied KLT’s motion for summary judgment and granted LB’s cross motion for summary judgment. KLT appealed.

Rule of Law

Issue

Holding and Reasoning (Tom, J.)

Concurrence/Dissent (Andrias, J.)

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