FILED: NEW YORK COUNTY CLERK 10/27/ :23 PM INDEX NO /2015 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 10/27/2015

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1 FILED: NEW YORK COUNTY CLERK 10/27/ :23 PM INDEX NO /2015 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 10/27/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X PHOENIX EXPERIENTIAL DESIGNS, Index No /2015 Plaintiff, -against- SHAWN LERNER and ZIP-FLYER LLC, Defendants X AFFIRMATION OF ALEXANDER D. TUTTLE IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT IN LIEU OF COMPLAINT ALEXANDER D. TUTTLE, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am a partner of Tuttle Yick LLP, attorneys for defendants Zip-Flyer LLC ( Zip-Flyer ) and Shawn Lerner ( Lerner ) (collectively ZF ). 2. This affirmation is submitted, together with the Affidavit of Lerner, sworn to on October 27, 2015 ( Lerner Aff. ) in opposition to plaintiff s Phoenix Experiential Designs ( Phoenix ) motion, pursuant to CPLR 3213, for summary judgment against ZF in lieu of a complaint (the SJ Motion ). A. Statement of Facts 3. The relevant facts are sworn to in the Lerner Aff., but are further recited here for context with respect to Zip-Flyer s legal arguments. 4. Zip-Flyer is a designer, manufacturer, and builder of thrill rides, including zip-lines that are often featured in amusement parks and ski resorts. (Lerner Aff. 3) 5. In or about 2013, Vail Resorts ( Vail ), one of the largest ski resorts in the United States, engaged Zip-Flyer to design, manufacture, and build two (2) zip-lines at its Vail and Breckenridge locations (the Vail Projects ). (Id. at 4).

2 6. Zip-Flyer, in turn, engaged certain engineers and fabricators to facilitate the design and construction of the zip-lines, including defendant Phoenix, pursuant to a contract dated March 15, 2013 (the Contract ). (Id. at 5; See Exhibit A to the SJ Motion). 7. The Contract required Phoenix to meet certain performance standards, including to perform in a first class workmanlike manner and to the satisfaction of Zip-Flyer and Vail by meeting their budget and schedule requirements. (Id. at 6; see Exhibit A to the SJ Motion). 8. The Contract provided that time is of the essence in the performance of [Phoenix ] work, and as such, agrees that it will strictly adhere to the project scheduled set forth below (the Project Schedule )... (Id. at 7; see Exhibit A to the SJ Motion). 9. Ultimately, Phoenix failed to meet the budget and schedule requirements for the Vail Projects and was in breach of the Contract. This included: (i) causing a 2.5 week delay beyond the required completion date, requiring Vail to cure the delay through an independent contractor; (ii) improperly charging Zip-Flyer for time and materials over 2.5 weeks in violation of the Contract; and (iii) permanently impairing Zip-Flyer s reputation to deliver timely service to its clients. In fact, when Vail retained Zip-Flyer for a new project, Vail specifically omitted a portion of the project that would have generated $650,000 in revenue due to Vail s lack of confidence in Zip-Flyer s ability to perform timely, which was directly attributed to Phoenix. (Id. at 8). 10. The scope and consequence of Phoenix breaches and failure to perform was not known until recently, and certainly after signing the mutual release upon which Phoenix is improperly seeking to enforce a money judgment through an accelerated procedure. (Id. at 9). 2

3 11. In or about 2015, Phoenix claimed it was owed an outstanding balance for the Vail Projects. (Id. at 10). 12. Through a series of discussions with the principal of Phoenix, Zip-Flyer agreed that, in exchange for a mutual release, it would issue a series of payments to Phoenix. (Id. at 11). 13. The mutual release was executed on or about June 27, 2015 (the Mutual Release ). (Id. at 12; see Exhibit B to the SJ Motion). 14. Significantly, the Mutual Release states that it shall be binding upon the parties satisfactory completion of all of the foregoing Conditions of Payment. (Id. at 13; see Exhibit B to the SJ Motion). 15. Shortly after executing the Mutual Release, Lerner came to find out the scope and consequence of Phoenix performance on the Vail Projects, which did not warrant proceeding with the Mutual Release. In fact, if any payment was owed between Zip-Flyer and Phoenix, it was from Phoenix to Zip-Flyer for the damages caused in connection Phoenix delayed and improper performance. (Id. at 14). 16. Accordingly, the Conditions of Payment were not delivered, and the Mutual Release is not binding. (Id. at 15). B. CPLR 3213 is Improper Mechanism 17. CPRL 3213 provides: When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint. 18. The prototypical example of an instrument for the payment of money is an unconditional promise to pay a sum certain, signed by the maker and due on demand or at a 3

4 later time. Weissman v. Sinorm Deli, Inc., 88 N.Y.2d 437 (1996) (citing 4 Weinstein Korn Miller, N.Y.Civ.Prac , at 253). Cases within CPLR 3213 have dealt primarily with some variety of commercial paper in which the party to be charged has formally and explicitly acknowledged an indebtedness. Interman Indus. Prods., v. R.S.M. Electron Power, 37 N.Y.2d 151, (1975). Where the instrument requires something in addition to defendant s explicit promise to pay a sum of money, CPLR 3213 is unavailable. Weissman, 88 N.Y.2d 437, Here, there was no unconditional, unilateral promise for payment by Zip- Flyer to Phoenix. Nor was the Mutual Release, in the traditional sense, a negotiable form of commercial paper. Rather, the Mutual Release was a proposed future settlement, which by its terms, was conditional and bi-lateral. 20. General releases are governed by principles of contract law. Mangini v. McClurg, 24 N.Y.2d 556 (1969). Here, the consideration for the Mutual Release was a promise of future payments from Zip-Flyer to Phoenix. To the extent those payments were not made, there would be no release of claims by either party, and Zip-Flyer and Phoenix would be free to pursue claims arising under the Contract. In fact, the Mutual Release specifically states that it is not binding unless and until Zip-Flyer s Conditions of Payment have been satisfied. 21. Accordingly, without payment, the Mutual Release is not binding upon Zip-Flyer. The proper context in which a dispute should be raised is within the dispute resolution provision of the Contract, not based upon the proposed Mutual Release, which never came into effect. Nor may Phoenix improperly utilize the expedited judgment process that is reserved for defaults on unilateral and unconditional commercial paper. 22. Notwithstanding the foregoing, Zip-Flyer had a material and substantial 4

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