Metro Sports Sales, Inc. v. Spenco Medical Corp.

252 A.D.2d 484, 676 N.Y.S.2d 492, 1998 N.Y. App. Div. LEXIS 8010

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 1998
• Status: Published

Opinion

—In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (McCaffrey, J.), dated July 8, 1997, as granted the defendants’ motion for partial summary judgment limiting the damages to be recovered on the plaintiff’s first and third causes of action to a maximum of $18,035.71.

Ordered that the order is affirmed insofar as appealed from, with costs.

The parties’ agreement was duly terminated by written notice which the plaintiff acknowledged. Pursuant to the terms of their agreement, the commissions due the plaintiff were limited to only the orders it sold as they were shipped. The plaintiff’s unsupported assertions to the contrary did not raise a material issue of fact in this regard and thus were insufficient to defeat the defendants’ motion for partial summary judgment (see, Zuckerman v City of New York, 49 NY2d 557, 562; Greenman Constr. Corp. v Incorporated Vil. of Northport, 209 AD2d 565).

The plaintiffs remaining contention is unpreserved for appellate review, and in any event, without merit (see, Croce v Marisi, 234 AD2d 333). Pizzuto, J. P., Santucci, Altman and Luciano, JJ., concur.