Green Acres Associates v. Pergament Distributors, Inc.

143 A.D.2d 974, 533 N.Y.S.2d 583, 1988 N.Y. App. Div. LEXIS 10382

Opinion

In an action to recover damages, inter alia, for breach of a contract, the defendants appeal from a judgment of the Supreme Court, Nassau County (Widlitz, J.), entered June 5, 1987, which, upon an order of the same court dated December 16, 1986, granting the plaintiff’s motion for partial summary judgment against the defendants, and denying the defendants’ cross motion for partial summary judgment, is in favor of the plaintiff and against the defendants in the principal sum of $15,604.67.

Ordered that the judgment is affirmed, with costs.

Based on the record, the award of partial summary judgment in the plaintiff’s favor was proper. The plaintiff’s moving papers were supported by the verified pleadings as well as documentary evidence which established that no triable issues of fact exist regarding the defendants’ liability for the amounts in question. Moreover, the defendants explicitly conceded their liability for the outstanding debts. The defendants’ cross motion for partial summary judgment which was based on allegations of certain setoffs to which the defendants are entitled, was properly denied since this matter was not asserted as a counterclaim in the defendants’ answer. On this point, it is significant to note that the Supreme Court stated that it would entertain a motion from the defendants to amend their answer so as to include such a counterclaim. Upon amendment of their answer, the defendants will have an opportunity to seek recovery of the alleged set-off amounts.

We have reviewed the defendants’ remaining contentions and find them to be without merit. Mollen, P. J., Kunzeman, Rubin and Eiber, JJ., concur.