Daviro Corp. v. Aras Corp.

167 A.D.2d 985, 562 N.Y.S.2d 7, 1990 N.Y. App. Div. LEXIS 14334

Opinion

Order unanimously affirmed with costs. Memorandum: Defendant appeals from an order granting plaintiff summary judgment on its claim for $63,357 in compensatory damages. The court did not grant summary judgment on any of the theories expressly pleaded, but read the complaint as stating a claim for goods sold and delivered and granted plaintiff summary judgment on that theory. The court’s analysis and resolution of the case were proper. In support of its motion, plaintiff made an evidentiary showing that defendant ordered the goods from plaintiff’s principal, that defendant took possession of them, that defendant did not pay for the goods, and that plaintiff was consequently charged for the goods on its own account. Defendant failed to rebut plaintiff’s evidentiary showing, and in essence conceded that it was obligated to pay for the goods. We thus adopt the court’s analysis interpreting plaintiff’s complaint as stating a contract claim and granting summary judgment on that basis. We have considered defendant’s remaining contentions and conclude that they are without merit. (Appeal from order of Supreme Court, Nassau County, Christ, J.—summary judgment.) Present—Callahan, J. P., Denman, Green, Lawton and Davis, JJ.