Summary Judgment for Breach of Contract Requires Prima Facie Proof of the Plaintiff’s Own Performance (and Cannot Be Cured by Reply Papers)

1. Introduction

In International Bus. Machs. Corp. v Mullen Tech., Inc. (2026 NY Slip Op 04756), the Appellate Division, Second Department reviewed a damages judgment entered after summary judgment on liability and an inquest on damages in a contract dispute arising out of a joint battery-development arrangement.

The plaintiff, International Business Machines Corporation (IBM), sued the defendant, Mullen Technologies, Inc. (Mullen), for (among other claims) breach of two December 2017 agreements: (1) a Joint Development and Technology License Agreement (the “JDA”), and (2) an Ingredient Logo Trademark License Agreement (the “TLA”). The key liability issues on appeal were whether IBM established, on summary judgment, all elements of breach—especially IBM’s own performance under the JDA—and whether Mullen raised factual issues. A related issue was the proper measure and proof of contract damages, given the inquest award of $4.5 million (the $4 million JDA payment plus the $500,000 TLA royalty).

2. Summary of the Opinion

The Second Department reversed the judgment and modified the underlying summary-judgment order:

  • TLA: IBM did establish prima facie liability for Mullen’s failure to pay the $500,000 royalty; Mullen failed to raise a triable issue of fact.
  • JDA: IBM did not establish prima facie entitlement to summary judgment on liability because it failed to eliminate triable issues as to whether IBM performed its own JDA obligations—notably obligations triggered “upon” receipt of the $4 million payment. Summary judgment on JDA liability therefore had to be denied, “regardless of the sufficiency of the defendant’s opposition papers.”
  • Damages/Posture: The court held IBM proved general damages of $500,000 for breach of the TLA and that the inquest proof reasonably connected to that amount. The matter was remitted for further proceedings on the JDA claim and entry of an amended judgment.
  • Motion practice: The court also denied IBM’s motion to dismiss the appeal as academic.

3. Analysis

A. Precedents Cited

i. Prima facie elements for breach of contract on summary judgment

The court reiterated the standard that to win summary judgment on a breach claim, the movant must prove the contract, its own performance, the opponent’s breach, and resulting harm, citing U.S. Bank N.A. v Reddy and All Nations Steel Corp. v KSK Constr. Group, LLC. This framing mattered because IBM’s JDA proof failed at the “plaintiff’s performance” element, which is not a technicality but a required element of the cause of action itself.

ii. Reply papers cannot supply missing prima facie proof

The court relied on Bonilla v Southside United Hous. Dev. Fund Corp. (and O'Connell v Los Compadres Liquors & Wines) for the rule that a movant “cannot sustain its prima facie burden by relying on evidence submitted for the first time in its reply papers.” This principle reinforces orderly motion practice: the movant must lay out its full prima facie case in the opening submission so the opponent has a fair chance to respond.

iii. Denial required if the movant fails to meet its prima facie burden

The court invoked Alvarez v Prospect Hosp. for the core summary-judgment axiom: if the movant fails to establish prima facie entitlement, the motion must be denied “regardless of the sufficiency” of the opposition. That is why Mullen’s opposition (including requests for discovery and allegations of misrepresentation) was not dispositive of the JDA summary-judgment outcome—IBM’s own showing was insufficient.

iv. Authority supporting summary judgment on the TLA claim

For the TLA, IBM’s showing fit conventional breach-of-payment cases; the court cited Shulamith Sch. for Girls, Inc. v Shulamith Sch. for Girls of Brooklyn and Ben Ciccone, Inc. v Naber Elec. Corp. as examples supporting summary judgment where a contract required payment and the defendant failed to pay without raising a triable defense.

v. Performance disputes defeating summary judgment

The court cited All Nations Steel Corp. v KSK Constr. Group, LLC and Avery v WJM Dev. Corp. to support the proposition that unresolved factual issues about performance (here, IBM’s performance under the JDA) defeat summary judgment on liability. In practice, this reflects a common pattern: where performance is sequential or conditional, a movant must prove it satisfied the contractual conditions that make the opponent’s duty enforceable.

vi. Contract damages principles applied to the TLA award

In addressing damages—especially at the inquest—the court grounded its analysis in settled contract-damages doctrine:

  • Long Is. Minimally Invasive Surgery, P.C. v MultiPlan, Inc. (quoting iGo Mktg. & Entertainment, LLC v Hartbeat Prods., LLC): expectation damages aim to “make good or replace the loss caused by the breach.”
  • iGo Mktg. & Entertainment, LLC v Hartbeat Prods., LLC and Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y.: damages should place the nonbreaching party in as good a position as if the contract had been performed.
  • Biotronik A.G. v Conor Medsystems Ireland, Ltd. (quoting American List Corp. v U.S. News & World Report): general damages are the “natural and probable consequence” of the breach and include “the money that the breaching party agreed to pay under the contract.”
  • Burden and proof of damages: Chen v Wen Fang Wang (quoting G & A Moving & Stor. Co. v Computer Assoc. Intl.); uncertainty does not bar recovery if there is a reasonable connection between proof and award, per Parris v Schneider Elec. Mobility NA, Inc. and J.R. Loftus, Inc. v White.
  • Application to the fixed royalty: Onekey, LLC v Byron Place Assoc., LLC supported the straightforward conclusion that the unpaid $500,000 was recoverable as general damages.

B. Legal Reasoning

  1. The court separated the two contracts and treated each on its own elements and proof. Even though both agreements were part of a broader relationship to develop lithium batteries, the court analyzed whether IBM proved breach for each instrument independently.
  2. TLA liability was simple and documentary. The TLA required a $500,000 royalty within 10 business days of the effective date; nonpayment established breach absent a triable defense. The court concluded IBM’s proof was sufficient and Mullen’s opposition did not create a factual dispute.
  3. JDA liability required proof that IBM performed—yet the record left triable issues. The JDA described IBM’s obligation to make certain “IBM Background Copyrightable Materials” available for electronic download “upon” IBM’s receipt of the $4 million payment. The Second Department held IBM failed to eliminate factual questions about IBM’s performance “pursuant to the terms of the JDA.” Critically, the defect was in IBM’s prima facie showing, so summary judgment could not stand under Alvarez v Prospect Hosp..
  4. Damages were affirmed only to the extent tied to the TLA. The court endorsed the expectation-damages framework and treated the fixed royalty as classic general damages—the contract price for the trademark license. It also found the inquest proof sufficiently connected to the $500,000 award. But because JDA liability was reopened, the $4 million component could not remain in a final judgment without further proceedings.

C. Impact

  • Sharper discipline for summary-judgment movants in contract cases: The decision underscores that a plaintiff moving for summary judgment must affirmatively prove its own performance (or legally excused nonperformance) in admissible form in the opening papers, not as an afterthought in reply.
  • Contract structure matters (sequential/conditional duties): Where obligations are triggered “upon” a payment or other condition, litigants should expect heightened scrutiny of whether the contractual sequence was satisfied or whether performance was due.
  • Inquest judgments are vulnerable if liability is later narrowed: Even a completed inquest cannot preserve damages tied to a claim whose liability determination is reversed; courts will remit for recalculation and an amended judgment consistent with the surviving claims.
  • Fixed-fee IP/trademark licenses remain straightforward on damages: The court’s treatment of the $500,000 royalty signals that where consideration is a specified sum for a granted license, nonpayment typically maps cleanly onto general damages.

4. Complex Concepts Simplified

Prima facie entitlement (summary judgment)
The moving party must present enough evidence to win without a trial if the opponent offered no evidence at all. If the movant’s proof is missing an element, the motion fails.
Triable issue of fact
A genuine factual dispute that must be resolved by a factfinder (judge or jury), not on papers.
Reply papers limitation
The movant cannot introduce key proof for the first time in the reply because the opponent would not have had a fair opportunity to answer it.
Inquest on damages
A court hearing (often after a default or after liability is determined) focused only on proving the amount of damages.
General damages (expectation damages)
The ordinary contract remedy: the money needed to put the nonbreaching party in the position it would have been in if the contract had been performed—often including the unpaid contract price.

5. Conclusion

International Bus. Machs. Corp. v Mullen Tech., Inc. reinforces a practical rule with decisive consequences: a plaintiff seeking summary judgment for breach of contract must prove, in its initial motion papers, not only the contract and the defendant’s breach, but also the plaintiff’s own performance; if that prima facie showing is not made, summary judgment must be denied under Alvarez v Prospect Hosp.. At the same time, the court confirmed that a fixed royalty due under a trademark license agreement is recoverable as general damages upon proof of nonpayment. The result—affirmance as to the TLA but remittal as to the JDA—highlights how careful element-by-element proof, and not just the existence of unpaid invoices, determines whether a contract claim can be resolved without trial.