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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..~'