John Treiber Agency, Inc. v. Spartan Concrete Corp.

268 A.D.2d 506, 701 N.Y.S.2d 666, 2000 N.Y. App. Div. LEXIS 678

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 2000
• Status: Published

Opinion

—In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Nassau County (Feuerstein, J.), entered January 21, 1999, which granted those branches of the plaintiffs motion which were for summary judgment on the issue of liability only and to dismiss the defendant’s counterclaims and strike its affirmative defenses.

Ordered that the order is modified by deleting the provisions thereof granting those branches of the motion which were for summary judgment (a) on the issue of liability, and (b) striking the first and second affirmative defenses and dismissing the first counterclaim, and substituting therefor provisions denying those branches of the motion; as so modified, the order is affirmed, with costs to the defendant.

Where the terms of an oral agreement between disputing parties are at issue, a trial is the only remedy (see, Werfel v Banka, 287 NY 91; L.N.L. Constr. v M.T.F. Indus., 190 AD2d 714). Moreover, where, as here, the issues of liability and damages are inextricably intertwined, it is best to leave the entire claim for trial (see, Matter of Kovacik, 67 AD2d 625, 626; Pathmark Graphics v J.M. Fields, Inc., 53 AD2d 531, 532; Harold Ohringer, Inc. v Kass, 28 AD2d 1117).

The defendant’s second counterclaim and third affirmative defense relate to the defendant’s claim that the plaintiff negligently failed to obtain the lowest possible insurance rates. Since this claim is merely a restatement of the separate counterclaim to recover damages for breach of contract, the Supreme Court properly dismissed the second counterclaim and properly struck the third affirmative defense (see, New York Univ. v Continental Ins. Co., 87 NY2d 308, 316). Thompson, J. P., S. Miller, Krausman, Florio and Schmidt, JJ., concur.