Gallo Wine Distributor, LLC v. Millennium Liquor Corp.

303 A.D.2d 452, 755 N.Y.S.2d 898, 2003 N.Y. App. Div. LEXIS 2353

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 2003
• Status: Published

Opinion

—In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), dated October 23, 2001, which denied its motion for summary judgment.

Ordered that the order is modified by deleting the provision thereof denying that branch of the motion which was for summary judgment on the first cause of action and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Queens County, for an inquest as to damages in accordance herewith.

The plaintiff established its entitlement to judgment as a matter of law on its first cause of action to recover damages for breach of contract for goods sold and delivered. In opposition, the defendants failed to submit sufficient evidence to raise a triable issue of fact with regard to the existence of a contract and the default thereon (see Zuckerman v City of New York, 49 [1980]). The defendants’ assertion regarding the quality of the products delivered can be resolved at the inquest on damages.

The plaintiffs remaining contentions are without merit. Feuerstein, J.P., Smith, Townes and Cozier, JJ., concur.