## Facts

- A Belgian concert promoter contracted with a touring company for the artist Akon to perform in Brussels on December 9, 2009.
- The promoter paid $125,000 to the touring company’s booking agent as the performance fee.
- The contract contained a nonperformance/force majeure clause treating nonperformance due to “sickness or accident” as force majeure, while requiring return of money for nonperformance outside force majeure.
- On the morning of the concert, the promoter was told Akon would not perform due to illness.
- The touring company offered evidence including Akon’s testimony, records of a surgery on November 16, 2009, and testimony from the surgeon that Akon’s described symptoms were consistent with a post-surgical complication.
- The touring company did not produce records from the emergency-room visit Akon claimed occurred on the concert date.
- The promoter sought return of the $125,000, arguing the touring company had not substantiated illness sufficient to trigger force majeure.
- The trial court denied the touring company’s motion for summary judgment and granted the promoter summary judgment on breach of contract; the touring company appealed.

## Issues

1. Whether the touring company established, as a matter of law, that the artist’s illness triggered the contract’s force majeure clause, entitling it to summary judgment dismissing the breach claim.
2. Whether the promoter established, as a matter of law, that force majeure did not apply, entitling it to summary judgment for return of the performance fee.
3. Whether disputed facts about the artist’s condition and ability to perform precluded summary judgment for either side.

## Decision

- The Appellate Division modified the order.
- It affirmed denial of the touring company’s motion for summary judgment.
- It reversed the grant of summary judgment to the promoter and denied the promoter’s cross-motion.
- The breach-of-contract claim proceeded because material fact disputes remained as to whether illness prevented performance and fell within force majeure.

## Legal Principles

- Summary judgment requires a prima facie showing of entitlement to judgment as a matter of law, eliminating all material fact issues; the burden then shifts to the opponent to show triable issues with admissible proof.
- A party invoking a force majeure clause bears the burden to show the claimed event occurred and fits within the clause.
- Testimonial assertions of illness, without contemporaneous corroborating medical documentation, may be insufficient to eliminate credibility and factual disputes on summary judgment.
- A party opposing force majeure cannot obtain summary judgment merely by identifying gaps in the other side’s proof; it must affirmatively show no triable fact issue on the dispositive question.

## Conclusion

The court held that conflicting and incomplete proof regarding whether Akon was too ill to perform created triable issues of fact, so neither the touring company nor the promoter was entitled to summary judgment on breach of contract or return of the performance fee.


Belgium v. Mateo Prods., Inc., 138 A.D.3d 479 (1st Dep’t 2016)