Litho Communications, Inc. v. Next Printing & Design, Inc.

6 A.D.3d 168, 773 N.Y.S.2d 561, 2004 N.Y. App. Div. LEXIS 3739

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 1, 2004
• Status: Published

Opinion

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered September 29, 2003, which denied plaintiffs motion for summary judgment dismissing defendant’s counterclaims, unanimously reversed, on the law, without costs, the motion granted and the counterclaims dismissed. The Clerk is directed to enter judgment accordingly.

Defendant contracted to purchase used printing presses from plaintiff and now alleges that the contract of sale was breached because the presses are defective. Defendant, however, agreed in its contract with plaintiff to take the presses “as is” and, accordingly, has no claim for breach of contract based on the condition of the machines (see Sarfowaa v Claflin Apts., 284 AD2d 228 [2001]).

Similarly, we find that defendant’s remaining counterclaims sounding in fraud are also precluded under the present circumstances. Here, defendant’s mere speculation and surmise that its inspector, Michael Caldarola, may have been an undisclosed agent of plaintiff, who somehow subverted defendant’s second prepurchase opportunity to inspect the presses, is unsupported on this record, and, thus, patently insufficient to raise a triable issue of material fact to defeat summary relief (see Sutton v East Riv. Sav. Bank, 55 NY2d 550, 553-554 [19823).

We have considered defendant’s remaining contentions and find them unavailing. Concur—Andrias, J.P., Williams, Lerner, Friedman and Marlow, JJ.