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s. R_.t~ C, oC-t-.Q_6, COURT OF APPEALS OF THE STATE OF NEW Y'ORK - - - - - - - - - - - - - - - -x ROBERT BRIAN ASSOCIATES, INC., Plaintiff-Respondent, : N.Y. County Clerk's Index No. 6859-77 -against- . LOEWS THEATRES, INC., . Defendant-Appellant. . S I R S NOTICE OF 2•4OTION -x PLEASE TAKE NOTICE'that upon the annexed affidavit of Sidney S. Rosdeitcher, sworn to October 26, 1979, the brief submitted herewith, the exhibits attached hereto, the record on appeal, the proceedings had~hereiri before Hon. Alvin F. Klein (J.S.C.), together with the exhibits received in evidence thereat, the judgment order of the Appellate Division, First Department dated July 10, 1979- the order of the Appellate Division dated September 25, 1979~denying defendant-appellant's motion for reargument or permission to appeal to the Court of Appeals and upon all the papers, pleadings and proceedings heretofore had~herein, defendant-appellant Loews Theatres, Inc. will move this Court at the Court of Appeals Hall, Albany, New York, on Monday, November 12, at 2:00 o'clock in the after- noon of that day or as soon thereafter as counsel can be heard for an order pursuant to C.P.L.R. 5602(a) granting defendant- appellant's leave to appeal to the Court of Appeals from so 03701059

much of the order of the Appellate Division, First Department entered in the Office of the Clerk of the Appellate Division, First Department on July 10, 1979 as affirms the judgment of the Supreme Court granting judgment to plaintiff-respondent with respect to the second cause of action herein in the amount of $10,000, plus.interest on the grounds that_.such appeal is required in the interests of substantial justice andthat there is no evidence to sustain judgment against defendant-appellant and upon such other grounds as are set forth in detail in the attached moving papers, together with such other and further court relief as just and proper. Dated: New York, New York October 29, 1979 Yours, etc., may deem PAUL, WEISS, RIFKIND, WHARTON & GARRISON' Attorneys for Defendant-Appellant Loews Theatres, Inc. 345 Park Avenue New York, N.Y. 10022 ` (212) 644-8000 TO: LEONARD R. GLASS, ESQ. Attorney for Plaintiff-Respondent Robert Brian Associates, Inc. Suite 3600 540 Mad'i son Avenue New York, N.Y. 10022' (212) 751-1244

COURT OF APPEALS OF THE STATE'OF NEW YORK - - x ROBERT BRIAN ASSOCIATES, INC., Plaintiff-Respondent, : N.Y. County Clerk's Index No. 6859-77 -against- . . AFFIDAVIT OF' LOEWS'THEATRES, INC., . SIDNEY'S. ROSDE'ITCHER Defendant-Appellant. . - - - - - - - - - - - - - - - - - - - x STATE OF NEW YORK ) COUNTY OF NEW YORK )) ss.. SIDNEY S. ROSDEITCHER, being duly sworn, deposes and says: 1. I am a member of the firm of Paul, Weiss, Rifkind, Wharton & Garrison, attorneys for defendant-appellant Loews Theatres, Inc. (hereafter generally referred to as "Lorillard"). I am familiar with the facts of this case and submit this affidavit in support of Lorillard's motion for leave to appeal to this Court from that portion of an order of the Appellate Division, First Department, affirming so much of a judgment of the Supreme Court, New York County, as awarded plaintiff-respondent Robert Brian, Inc. (hereafter generally referred to as "Robert Brian") the entire $10,000~ amount it sought with respect to its second cause of action.

2. By order dated July 10, 1979, the Appellate Division reversed so much of the trial court's judgment as awarded $90,-00&in damages to Robert Brian on its first cause of action and remanded for a new trial on damaaes. However, the judgment with respect to the second cause of actionwas affirmed•, without discussion, and now stands as a final judgment. A copy of that order of the Appellate Division is attached as Exh~ibit A, notice of entry of which was served upon Lorillard on July 17,_1979. 3. Thereafter, on August 9, 1979, Lorillard moved the Appellate Division, First Department for reargument or for leave to appeal to this Court. That motion was denied on September 25, 1979. A copy of that order with notice of entry served on October 26, 1979 is attached as Exhibit+ B. 4. No opinion was issued by the trial court or by the Appellate Division on reargument. A copy of the opinion of the Appellate Division upon the appeal is attached as Exhibit C. JURISDICTIOM 5. This Court has jurisdiction to grant leave to appeal this final judgment pursuant to C.P.L.R. § 5602(a)(1)(i). Reasons For Granting Leave 6. Leave should be granted in~order to correct a . ~ fundamental miscarriage of justice; For the judgment below ~O O N -2-

r awarded plaintiff a $10,000 commission for services it concededly never performed, and which was calculated under a contract which entitled plaintiff to a percentage of plaintiff's expenditures, even though it is undisputed that the expenditures involved were made by defendant -- not plaintiff. 7. The Appellate Division specifically found that Plaintiff Robert Brian~proved a contract under which it was conceive and develop promotional ideas for Lorillard, one of the terms of which provided that Robert Brian would be reimbursed for all outside purchases Robert Brian made on Lorillard's behalf and would, in addition, receive a 25% override on such purchases. Yet, the $10,000 award to'Robert Brian on the second'cause of action was based on outsid'e purchases which there is no dispute were made by Lorillard -- not Robert Brian. This remarkable result in apparently due to an oversight by the Appellate Division which it failed to correct, even though called to its attention on a motion for ~ O reargument. I-A O 8. The result is particularly unjust in light of w the actual facts: For Lorillard is being reaTuired to reimburse Robert Brian not only for services undisputedly never performed by Robert Brian, but which Lorillard was forced to undertake at great additional expense to rectify problems created by services previously procured by Robert Brian, for which it was

!. fully reimbursed. Subsequent to the termination of the Robert Brian/Lorillard relationship, Lorillard was required by the Federal Trade Commission to negotiate the rejudging of an elaborate skill contest which Robert Brian;had conceived and implemented. This became necessary because the original j'udging procedure employed by the judging agency which Robert Brian had retained and supervised in the first instance was inadequate. The necessity of rejudging this contest was a deep embarrassment to Lorillard, and caused it to incur.great additional expense. Robert Brian, as it admitted at trial, refused to involve itself in any way in the rejudgina of this contest. Therefore, Lorillard~was required, on its own, to make and pay for all necessary arrangements for the rejudging. 9. Robert Brian has now been awarded $10,000 as a 25% commission on the moneys which Lorillard~paid in connection with this rejudging. Moreover, Robert Brian's award is not limited to the net profits it would have realized' if it had involved itself in this rejudging effort. Instead it sought (and, absent reversal, will obtain) a 25% commission without deducting any of the expenses it would have incurred had it performed services in obtaining and supervising the rejudging. 10. We recognize that a great amount of money is O not involved here and that no complex or novel legal principle GJ -1 O is raised. But this shockingly unjust result -- which finds 0 ~ ~

k e no basis in the contract terms as found by the Appellate Division -- cannot be allowedto stand. Otherwise, Robert Brian would receive a bonus for work it undisputedly refused to do, and Lorillard would be pa_ying a commission for the procurement of services which it is undisputed Lorillard itself procured and paid for. WHEREFORE, I respectfully urge this Court to grant ,the instant motion for leave to appeal. , --- / i J ~- - = , ` E Sidney S/ Roseitcher Swor~} to before me this day of October, 1979. r .,. ~... .. CV'i fT. . .. L i( .. ~.._....:1~.. . :'J..~'

I 990T0LE0 Exhibit A

490IULEO

yx > 1_16iF_tdN1_.!45~_-{.?G~.aRtvti ~~ "`~~' TS 7 'FienK..~p.. Ar a term of the Appellate Division of the Supreme Court beld in and for the First Judicial Deparanent~ in the County of New l'or};, on July 10, 1979 Present-Han. Harold Lirns, Justice Presidinq_ , ::ax Blioom,. ~~incent,T~. Luoiano, J. Robert Lynch, - Justices. Robert Brian Associates, Inc., - Plainti~ff-Respondent, -against- 5734 Loews Theatres, Inc „ Defendant-Anpellant. 1 Ar appealihaving been talc~ to this Court by tbe defendant-appellant from the judgment of tbe Supreme Court, New York County - (A. Klein, J1.), eateredon July 20, 1978, awarding pl'aintiFf $100,0( in damages ($90,000 on the first cause of action and $10,000 on the , second cause"of action) plus costs and interest, and'said appeal having bem argucd by 1•ir.: Sidney S. Rosdei tcher ~of counsel for the appellant , and by I~.r. Leonard R. Glass of counsel'for the rupoad'rmt ;,and due dcljberation having been had thereon, and uDon the memo- randum decision~of this Court filed herein, It is unanimously ordered that the judgment so appealed from be aad'the same is hereby modified, on the law and the facts, to rema for a new trial on the question of damages recoverable on the first cause of action, and otherwise affirmed, without costs and without disburse- ments. EiJTER : Clerk. .