The following e-filed documents, listed by NYSCEF document number (Motion 002) 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 145 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER.) The following e-filed documents, listed by NYSCEF document number (Motion 003) 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 140, 141, 142, 143, 144, 146 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER.) DECISION ORDER ON MOTIONS Upon the foregoing documents, it is ORDERED that the motions are DENIED. This breach of contract dispute arises out of two Security Purchase Agreements and Zero Coupon Convertible Notes. Plaintiff alleges that defendant breached a December 22, 2015, Security Purchase Agreement (December SPA) where defendant agreed to pay plaintiff $1,450,000 in exchange for issuance of a Zero Coupon Convertible Note (December Note), which was convertible into shares in My Size (Company). Plaintiff moves for summary judgment (Motion Sequence 002) claiming that it performed under the December SPA and that defendant failed to pay $616,000 of the total amount promised. Defendant North Empire, an investor in the Company, also moves for summary judgment (Motion Sequence 003) alleging that plaintiff materially breached its agreements with defendant. Defendant claims plaintiff breached the December SPA along with a March 10, 2015 Securities Purchase Agreement (March SPA) and Zero Coupon Convertible Note (March Note) by failing to deliver “Stock Certificate No. 305″ (Stock Certificate) for approximately eight months and that by the time it ultimately received the Stock Certificate, My Size’s share price dropped significantly. Background Pursuant to the March SPA, North Empire agreed to provide $1M in cash to My Size in return for the March Note. By its terms, the March Note automatically converted to equity when My Size’s Common Stock became listed for trading on a national securities exchange at the “Conversion Price” of $3.50 per share (NYSCEF 7 [March Note] at
5(b), 3 “Conversion Price”). In December 2015, the parties entered into an additional SPA where defendant would provide $1.45M in cash to My Size in exchange for the December Note. The March and December Notes are substantially the same and provide in Section 5(b) that in the event that the Common Stock becomes listed for trading on a national securities exchange prior to the Note having been paid in full, “the Outstanding Amount of this Note shall be deemed to have been converted automatically into Common Stock at the Conversion Price…Thereupon, this Note shall be considered void, and the Holder shall promptly surrender the Note for cancellation” (NYSCEF 7, 9 [Notes] at 5[b]). The Notes further provide in Section 5(d)(i), that in order to convert the Note into Common Stock, the Holder “shall surrender this Note,…, to the Company, and shall give written notice…to the Company that the Holder elects to convert all or the portion of the Outstanding Amount…provided, however, that the Company shall not be obligated to issue certificates evidencing the shares of Common Stock issuable…unless this Note with evidence of the principal amount hereof to be converted is delivered to the Company…” Once the Conversion Notice is given to the Company, then the “Company shall issue and deliver as promptly as practicable and in no event later than five (5) business days after delivery to the Company of the Note…a certificate for the number of shares of Common Stock…” (Notes at 5[d][ii]). On July 14, 2016, My Size was listed on the Nasdaq stock exchange (NYSCEF 5 at Counterclaims [Counterclaims] 12). On that same date, My Size’s transfer agent, V-Stock Transfer (VStock), issued Stock Certificate No. 305, in the amount of 699,999 shares of common stock, for the benefit of North Empire (Counterclaims at 14). However, rather than two separate stock certificates, a single stock certificate was issued in the name of North Empire (Counterclaims 12, NYSCEF 10). North Empire’s President Meshulam Martin affirms that he immediately and later repeatedly requested its Stock Certificate so that it would be able to trade (NYSCEF 133 [Tr Martin] at 41 [the first time North Empire asked My Size to deliver a share certificate was the date it was issued on the Nasdaq], 43 [from the minute My Size went public, North Empire requested "several, several, several" times to convert its shares and be able to trade]). On August 15, 2016, VStock sent the Stock Certificate to My Size’s office which is located in Israel (Counterclaims at 14). Defendant claims that despite its repeated demands from August 2016 through February 2017, My Size never informed it that the Stock Certificate was in its possession and that it purposely delayed delivering it to North Empire preventing North Empire from selling it at a larger profit (Counterclaims at
