SCAVENGER INC v. GT INTERACTIVE SOFTWARE INC (2000)

Order, Supreme Court, New York County (Barry Cozier, J.), entered March 3, 2000, which, to the extent appealed from, granted plaintiff's motion for partial summary judgment as to plaintiff's first cause of action for guaranteed payments under the terms of the parties' agreement, and ensuing judgment, same court and Justice, entered March 14, 2000, entitling plaintiff to recover the total sum of $2,411,114 from defendant, unanimously affirmed, with costs.

 Defendant's contract with plaintiff, containing separate production and payment schedules for each of the four CD-ROM games plaintiff was to deliver to defendant, was a divisible contract (see, Christian v. Christian, 42 N.Y.2d 63, 73, 396 N.Y.S.2d 817, 365 N.E.2d 849).   Accordingly, plaintiff's right to recover payments guaranteed under the contract for the two CD-ROM games delivered to defendant was not impaired by plaintiff's failure to deliver the two remaining games and, in its award of partial summary judgment, the motion court correctly determined, as a matter of law, that defendant's claim that plaintiff breached the parties' agreement by failing to deliver the CD-ROM games on time, had been waived by defendant's requests for significant modifications in the games and by defendant's acceptance and marketing of the games without objection (see, Fifty States Mgt. v. Niagara Permanent Sav. & Loan, 58 A.D.2d 177, 181, 396 N.Y.S.2d 925).

MEMORANDUM DECISION.