The opinion of the court was delivered by: RICHARD CASEY, District Judge
MEMORANDUM OPINION & ORDER
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.
II. SUMMARY JUDGMENT STANDARD
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] ...