MTI/The Image Group, Inc., Formerly Known as Modern Telecommunications, Inc., et al., Appellants, v. Morning Studios, Inc., Respondent, et al., Defendants

MTI/The Image Group, Inc., Formerly Known as Modern Telecommunications, Inc., et al., Appellants, v Morning Studios, Inc., Respondent, et al., Defendants. [637 NYS2d 107] [MAJORITY] Order, Supreme Court, New York County (Walter Schackman, J.), entered July 27, 1995, which denied plaintiffs’ motion for partial summary judgment as against defendant-respondent, unanimously affirmed, with costs. Plaintiffs’ claim that they are entitled to judgment for breach of the non-solicitation provisions of paragraph 11 of the Television Services Agreement is without merit, as that provision was to be triggered only by an exercise of defendant’s option to purchase all of MTI’s equipment, which was not alleged. Concerning which party breached the Television Services Agreement first, we agree with the IAS Court that the conflicting affidavits submitted by the parties raise issues of fact that cannot be determined on a motion for summary judgment (see, Boston Concessions Group v Criterion Ctr. Corp., 200 AD2d 543). There is also an issue of fact as to whether the parties intended MTI’s rights under the December 16, 1993 letter agreement to survive execution of the superseding Television Services Agreement. Concur—Sullivan, J. P., Wallach, Ross and Williams, JJ.