Curcio v. Samson Construction Co.

¶1*665The court erred in granting plaintiff summary judgment on his claim for a share of defendant Samson Construction Co., Inc.’s net profits. Although, pursuant to his employment agreement, plaintiff was to receive, inter alia, 50% of Samson’s net profits, the record clearly presents triable issues as to whether plaintiff has been paid the amounts sought, and whether Samson operated at a net loss in 2007. In its determination of the motion, the court should not have considered plaintiff’s submissions to be more credible than those of Samson (see generally Forrest v Jewish Guild for the Blind, 3 NY3d 295, 315 [2004]; Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997]). Concur — Gonzalez, EJ., Friedman, Moskowitz, Freedman and Román, JJ.