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AHOLD, N.V. v. SMG-II HOLDINGS CORP.

290 A.D.2d 375 (2002)

736 N.Y.S.2d 594

KONINKLIJKE AHOLD, N.V., et al., Respondents, v. SMG-II HOLDINGS CORP., Appellant.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided January 29, 2002.

Defendant's counterclaim for damages based on plaintiff's failure to use its best efforts to consummate the merger was properly dismissed on the ground that defendant failed to submit any evidence countering plaintiff's prima facie showing, made on its cross motion to dismiss the counterclaim, that it had used such best efforts. The attorney's affirmation that defendant now argues raises an issue of fact as to whether plaintiff...

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