in the Client. These include meetings with representatives of Barnett Bank, Bank of Nova Scotia, Mellon, and Heller Financial -- the banks involved in the February 1994 debt restructuring. (See Rosenbaum Aff. dated August 9, 1995, Ex. B; Rosenbaum Aff. dated August 25, 1995, Ex. A.) Lazard also points to the "disengagement" letter written by defendant, in which Crown acknowledged that Lazard had partially performed. In the letter, Crown stated that Lazard provided "limited assistance and advice with reference to refinancing or restructuring the mortgage indebtedness," (Letter from Robert E. Woolley to Peter Cyrus, Rosenbaum Aff. dated Aug. 9, 1995, Ex. C. at 2), and "some assistance in negotiations with prospective lenders and investors," (id. at 3).
In opposition, defendant presents affidavits by Charles M. Sweeney, the President of Crown, and Jack Roberts, its Vice-President and Secretary. In identical language, they assert that "Lazard did not undertake any of the tasks or activities required in the Engagement Letter during 1993," including conducting a due diligence evaluation, preparing a report evaluating the Client's value and prospects, advising the Client with respect to restructuring or repurchasing limited partnership interests, contacting prospective investors or purchasers of the Client, assisting the Client in using public offerings, or providing periodic reports. (See Sweeney Aff., P 15; Roberts Aff., P 10.)
Neither affiant states that he or any other representative of Crown considered Lazard in default as of February 1994, nor does Crown indicate that it communicated to Lazard its dissatisfaction prior to the "disengagement" letter of April 1994. This omission is significant, since under New York law (which the Agreement provided shall apply, see P 13), "the power to terminate a continuing contract because of a particular breach of that contract is a power of election." Apex Pool Equip. Corp. v. Lee, 419 F.2d 556, 562 (2d Cir. 1969). The non-breaching party may choose to continue to perform the contract or may refuse to continue. Id. If the non-breaching party elects the first option, it may not later renounce its election to continue and seek to terminate based on the prior breach. See V.S. Int'l S.A. v. Boyden World Corp., 862 F. Supp. 1188, 1196 (S.D.N.Y. 1994). Crown's failure to present any evidence that it notified Lazard that it considered Lazard to have breached the Agreement as of February 1994 shows that even if Crown's allegations of an "utter failure of performance" were true, Crown had elected to continue with the Agreement. Cf. ARP Films, Inc. v. Marvel Entertainment Group, Inc., 952 F.2d 643, 649 (2d Cir. 1991) ("[Plaintiff's] decision to continue receiving benefits pursuant to the . . . Agreement was tantamount to an election to affirm the contract.").
In addition, under New York law, whether a contract is divisible is a question of intent, determined from the language of the contract and the circumstances under which the contract was made. Rudman v. Cowles Communications, Inc., 30 N.Y.2d 1, 13, 330 N.Y.S.2d 33, 42, 280 N.E.2d 867, 872 (1972). A contract is divisible where "(1) the parties' performances can be apportioned into corresponding pairs of partial performances, and (2) the parts of each pair can be treated as agreed equivalents." Ginett v. Computer Task Group, Inc., 962 F.2d 1085, 1098 (2d Cir. 1992) (citing Restatement (Second) of Contracts, § 240 (1981)). The Agreement specifically provided that Lazard's payment would be apportioned according to various tasks, and was payable upon Lazard's performance of these tasks. (Agreement P 3(A)-(F).) Under these circumstances, the portion of the Agreement pertaining to the debt restructuring was severable from the other parts of the Agreement. See Kosinski v. Woodside Constr. Corp., 77 A.D.2d 674, 675, 429 N.Y.S.2d 783, 785 (3d Dep't 1980) (contract is divisible when price is apportioned among different items) (citation omitted). Defendant does not offer any evidence to rebut plaintiff's showing that it actually played a role in the February 1994 debt restructuring. Defendant's conclusory denials do not create a genuine issue of material fact as to whether as of February 1994, at least the debt restructuring portion of the Agreement was in effect. See Fed. R. Civ. P. 56(e) ("adverse party's response [to properly supported summary judgment motion] . . . must set forth specific facts showing that there is a genuine issue for trial").
Seeking to avoid this result, defendant moves to strike the Rosenbaum affidavits and the attached exhibits on various evidentiary grounds. This motion is meritless. Affidavits submitted in support of a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify as to the matters stated therein." Fed. R. Civ. P. 56(e). In response to defendant's motion, plaintiff submitted a second affidavit by Rosenbaum which specifically affirmed that it was based upon personal knowledge. (Rosenbaum Aff. dated Aug. 24, 1995 at P 2.) In addition, the underlying business records are annexed to the second Rosenbaum affidavit. See Fed. R. Evid. 803(6). The disengagement letter is evidence of Crown's attempt to terminate the contract and is also the admission of a party-opponent. See Fed. R. Evid. 801(d)(2)(D).
In an effort to delay judgment, defendant requests additional discovery. Under Fed. R. Civ. P. 56(f), the opponent of a motion for summary judgment who seeks discovery must file an affidavit explaining
(1) the information sought and how it is to be obtained; (2) how a genuine issue of material fact will be raised by that information; (3) what efforts the affiant has made to obtain the information; and (4) why those efforts were unsuccessful. Additionally, the discovery sought must be material to the opposition of the summary judgment motion.
Sage Realty Corp. v. Insurance Co. of North America, 34 F.3d 124, 128 (2d Cir. 1994) (citing Hudson River Sloop Clearwater, Inc. v. Department of the Navy, 891 F.2d 414, 422 (2d Cir. 1989)). Defendant seeks discovery of "any evidence of misrepresentations made and fraud committed by Lazard," and discovery of "the nature and extent of Lazard's alleged performance of the duties and obligations set forth in the Engagement Letter." (Rule 56(f) Aff. of Michael J. Collins, Esq. at PP 5, 8.) Defendant "intends to depose Peter Cyrus, a former employee of Lazard, and David E. Rosenbaum." (Id. at P 8.)
This showing is insufficient under Rule 56(f). Any misrepresentations made to defendant are matters within its own knowledge, and defendant's allegations of fraud -- including those contained in its amended answer and counterclaims -- lack the specificity required by Rule 9(b). With respect to the request for discovery concerning plaintiff's performance, the affidavit does not identify any specific facts in plaintiff's possession -- it simply seeks discovery regarding the "nature and extent" of Lazard's performance. In light of plaintiff's showing that it played a role in effecting the successful debt restructuring, such a vague and formulaic recital is insufficient under Rule 56(f).
B. Plaintiff's entitlement to the fees under the Agreement
Summary judgment in contract disputes is proper "if the language of the contract is wholly unambiguous." Mellon Bank, N.A. v. United Bank Corp., 31 F.3d 113, 115 (2d Cir. 1994) (citation and internal quotation marks omitted). The Agreement specifically provided that Lazard would be entitled to its fees upon the occurrence of certain events, "regardless of whether [Lazard] is responsible for arranging said events." (Agreement P 4.) It reiterated that even if Lazard did not arrange the transactions in question, its fees "shall be determined as if [Lazard] had actually arranged said transactions." (Id.)
Such clauses are common. For instance, in PaineWebber Inc. v. Campeau Corp., 670 F. Supp. 100 (S.D.N.Y. 1987), an agreement for the services of an investment bank that provided that "if within the next 12 months, an Acquisition [by Campeau Corp.] shall be consummated, PaineWebber will receive a fee of $ 5,750,000 . . . upon consummation of such Acquisition" was held to entitle PaineWebber to payment even though it had not been directly involved in the acquisition. Id. at 102. Similarly, Grubb & Ellis Co. v. Bradley Real Estate Trust, 909 F.2d 1050 (7th Cir. 1990), upheld an award of a broker's commission, holding that "when an agency agreement expressly provides for the payment of a commission upon sale without regard to the agent's role in the transaction, the agent's failure to procure the sale is irrelevant." Id. at 1055. In addition, although unnecessary under the Agreement, there is uncontradicted evidence that plaintiff actually played a role in the debt restructuring. Accordingly, Lazard is entitled to summary judgment.
II. Fed. R. Civ. P. 54(b)
Fed. R. Civ. P. 54(b) provides in relevant part:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, . . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims . . . only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.