GTP Leisure Products, Inc. v. Quasar Electronics Co.

72 A.D.2d 930, 422 N.Y.S.2d 207, 1979 N.Y. App. Div. LEXIS 14739

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1979
• Status: Published

Opinion

Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Plaintiff appeals from an order of the Supreme Court, Onondaga County, granting defendant partial summary judgment on its counterclaim. It was improper for Special Term to permit immediate entry of judgment on defendant’s counterclaim for goods sold and delivered where there are unresolved factual issues in the plaintiff’s action for damages concerning whether defendant breached the underlying contract of sale (Created Gemstones v 'Union Carbide Corp., 47 NY2d 250). The amount due defendant on its counterclaim is dependent upon whether it breached the contract and, if so, to what extent plaintiff was damaged. Therefore, whatever the ultimate result, proper disposition of the counterclaim must await resolution of these factual questions. (Appeal from order of Onondaga Supreme Court&emdash;partial summary judgment.) Present&emdash;Cardamone, J. P., Simons, Hancock, Jr., Callahan and Moule, JJ.