Klir v. Gordon & Breach, Science Publishers, Inc. , 176 A.D.2d 158 ( 1991 )

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered March 6, 1990, denying the motion of additional counterclaim defendant Pergamon Press, Inc. ("PPI”), for summary judgment dismissing the counterclaims against it pursuant to CPLR 3212, unanimously affirmed, with costs.

Plaintiff, the editor of an academic journal published by defendant, commenced this action for breach of contract and an accounting, alleging that defendant had violated certain rights involving editorial control over the journal. Defendant denied the allegations and asserted counterclaims against PPI and its affiliate, Pergamon Press, Ltd. ("PPL”), a British Corporation, alleging, inter alia, interference with contractual relations through the publication of a competitive journal. PPI moved for summary judgment, asserting that it had no involvement with the publication and was an entirely separate entity from PPL. The motion was denied with leave to renew after limited discovery. PPI thereafter moved to renew, contending that discovery yielded nothing to contradict the original facts asserted that it was a distinct corporate entity. The court denied the motion, finding that defendant had submitted sufficient evidentiary proof to raise a triable issue of fact as to the relationship between the entities.

The cover, masthead, and letterhead of the subject journal refer only to "Pergamon Press”, do not differentiate between the two counterclaim defendants and list both a New York and British address. Questions also exist with respect to unitary control of the two enterprises. The court thus properly determined the existence of triable issues of fact as to the true relationship of the additional counterclaim defendants and denied summary judgment (Rotuba Extruders v Ceppos, 46 NY2d 223). Concur — Rosenberger, J. P., Ellerin, Wallach, Kassal and Rubin, JJ.