Landis Machine Co. v. Hydronic Fabrications, Inc.

41 A.D.2d 607, 340 N.Y.S.2d 343, 1973 N.Y. App. Div. LEXIS 5213

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1973
• Status: Published

Opinion

Judgment, Supreme Court, New York County, entered on December 22, 1971, granting summary judgment in the total amount ©f $3,442.83, unanimously modified, on the law, to the extent of directing a hearing on the issue, of damages, and otherwise affirmed, without costs and without disbursements. Although liability is clear (see Hicks y. Bush, 10 N Y 2d 488, 491; Fadex Foreign Trading Gorp. v. Grown Steel Gorp., 297 N. Y. 903, affg. 272 App. Div. 273), there is no warrant in the record for ..the awarding of the specific amount of damages, the written agreement is silent as to cancellation charges and the claimed amount or extent of the damages incident to" the unwarranted cancellation having been challenged, a valid factual controversy exists with respect to the • amount of damage that may properly be awarded. Under the circumstances," there must be an assessment of the amount or the extent of damages. (CPLR 3212, subd, [c].) -Concur — Stevens, P. J., .McGivern, Markewich, Murphy and Tilzer, JJ.