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Supreme Court, Appellate Division, First Department, New York.

BMX WORLDWIDE, LTD., etc., Plaintiff-Respondent, v. COPPOLA N.Y.C., INC., Defendant-Appellant.

Decided: October 25, 2001

SULLIVAN, P.J., NARDELLI, WILLIAMS and MAZZARELLI, JJ. Todd C. Steckler, for Plaintiff-Respondent. Carol M. Luttati, for Defendant-Appellant.

Order, Supreme Court, New York County (Richard Braun, J.), entered March 22, 2001, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs or disbursements.

In this action to recover a finder's fee, summary judgment was properly denied since a triable issue exists as to whether defendant's obligation to pay plaintiff pursuant to the parties' contract for the placement of a hair colorist in defendant's salon was conditioned upon the colorist's attainment of certain levels of weekly business bookings.   As this record discloses, resolution of this issue turns upon credibility determinations inappropriate to a motion for summary judgment (see, Cochrane v. Owens-Corning Fiberglas Corp., 219 A.D.2d 557, 559, 631 N.Y.S.2d 358).   Defendant did not waive its affirmative defense by failing to plead non-performance of a condition precedent in its answer.   The failure of the condition precedent should come as no surprise to plaintiff since defendant raised the same defense in response to plaintiff's earlier summary judgment motion.

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