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July 14, 2004.


The opinion of the court was delivered by: RICHARD CASEY, District Judge


NeoVision Hypersystems, Inc. ("NeoVision" or "Plaintiff") sued Interactive Data Corp., f/k/a Data Broadcasting Corp. ("Interactive Data" or "Defendant"), for violation of the Lanham Act, unfair competition and breach of contract. After filing suit, Plaintiff voluntarily dismissed the Lanham Act and unfair competition claims. Defendant now moves for summary judgment on the remaining breach of contract claim. For the reasons set forth below, Defendant's motion is DENIED.


  NeoVision develops and sells financial reporting software known as Heatmaps and Heatmaps-Lite. The software, conceived in 1993 and first introduced into the marketplace in 1995, displays changes in data — such as the prices of securities — in distinctive color-coded blocks in real time. Interactive Data sells real-time market data and support tools that deliver continuously updated, time-sensitive financial data over the Internet to active traders and individual investors.

  On October 12, 1999, NeoVision and Interactive Data entered into a Distribution Agreement (the "Agreement") whereby NeoVision would develop a customized version of the Heatmaps and Heatmap-Lite programs that was compatible with Interactive Data's software. The result was to be a version of the software called HEATMAPS PRODUCTS. The Agreement provided Interactive Data with a non-exclusive license to distribute and sublicense HEATMAPS PRODUCTS, but did not require Interactive Data to distribute and sublicense a specified number of the product. The Agreement was to continue for a one-year period and then automatically renew for successive one-year periods unless one of the parties provided sixty days notice of its election not to renew the Agreement. The Agreement also provided that the parties consented to the jurisdiction of the New York courts and that New York law would govern any dispute.

  Plaintiff contends that it complied with the Agreement by timely delivering the software promised to Interactive Data and that it expended significant sums in training, marketing, and development in furtherance of the Agreement. Plaintiff further contends that despite the Agreement, Interactive Data failed to promote HEATMAPS PRODUCTS to its existing and potential customers and instead sold its own software, which performed similar functions. On the other hand, Interactive Data asserts that NeoVision materially breached the Agreement when it failed to deliver the HEATMAPS PRODUCTS within ninety days, as the Agreement required. Interactive Data further contends that nothing in the Agreement precluded it from selling software similar to HEATMAPS PRODUCTS.


  Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment should only be granted if "the nonmoving party `has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.'" Berger v. United States, 87 F.3d 60, 65 (2d Cir. 1996) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). When viewing the evidence, the Court must assess the record in the light most favorable to the nonmovant, resolve all ambiguities and draw all reasonable inferences in its favor. See Delaware & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990).

  Issues of fact are genuine when "a reasonable jury could return a verdict for the nonmoving party," and such contested facts are material to the outcome of the particular litigation if the substantive law at issue so renders them. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). Only when it is apparent that no rational trier of fact "could find in favor of the nonmoving party because the evidence to support its case is so slight" should a court grant summary judgment. Gallo v. Prudential Residential Servs., LP, 22 F.3d 1219, 1223-24 (2d Cir. 1994).


  The Court possesses diversity jurisdiction over this matter. See 28 U.S.C. § 1332. Under the explicit terms of the Agreement, the parties have consented to the jurisdiction of this Court and have agreed that New York law is applicable.

  Under New York law, in order to prevail on a breach of contract claim a party must prove: (1) a contract; (2) performance of the contract by one party; (3) breach by the other party; and (4) damages. Terwilliger v. Terwilliger, 206 F.3d 240, 245-46 (2d Cir. 2000). Defendant asserts that no reasonable jury could conclude that Plaintiff established that it properly performed under the contract and that it suffered damages. Therefore, Defendant asserts that summary judgment is appropriate.

  As for whether Plaintiff properly performed under the contract, the Court determines that there exists a genuine issue of material fact, thus precluding summary judgment in Defendant's favor. First, there exists a triable issue of fact as to Defendant's contention that Plaintiff materially breached the Agreement by failing to deliver the HEATMAPS PRODUCTS within ninety days after the effective date of the Agreement. Although the Agreement did require delivery within ninety days, there is evidence in the record that Defendant caused the delay in Plaintiff's production of a final version of the software. A rational factfinder could conclude that Defendant's delay constituted a valid excuse that negated any purported breach on Plaintiff's part. See, e.g., Rapid-Am. Corp. v. Olympic Tower Assocs., 564 N.Y.S.2d 401, 402 (App. Div. 1991).

  Second, Defendant contends that Plaintiff materially breached the contract because it failed to provide written notice of its intent to terminate the Agreement and to allow it an opportunity to cure the alleged breach. There is a genuine dispute as to whether the February 1, 2001 letter from Cormac L. Kinney, NeoVision's chairman, properly notified Defendant that Plaintiff believed Defendant had breached the agreement by not adequately promoting HEATMAPS PRODUCTS to its customers. (See Letter dated February 1, 2001, Ex. O to Declaration of Scott H. Casher [Casher Decl.] ("In September of 1999, NeoVision and [Defendant] ...

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