Philips Business System Inc. v. Wilmac Co.

94 A.D.2d 958, 464 N.Y.S.2d 85, 1983 N.Y. App. Div. LEXIS 24774

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 1983
• Status: Published

Opinion

. Order and judgment unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: The record presents triable issues of fact as to whether the State contract covers sales to not-for-profit and charitable organizations as well as to the State and its political subdivisions and also whether plaintiff’s policy of affording “price protection” to its distributors in the event of price increases was limited to sáles made to the State and its political subdivisions. Neither party has produced for the record a copy of the applicable State contract. Since plaintiff has not established conclusively by documentary evidence or otherwise that defendant has no claims to the items listed in exhibit “L”, summary judgment should have been denied (CPLR 3212, subd [b]; see Rotuba Extruders v Ceppos, 46 NY2d 223, 231). There was no agreement between plaintiff and defendant pertaining to the apportionment of commissions between the delivering distributor and the billing distributor and plaintiff owed defendant no legal obligation pertaining to such apportionment. Accordingly, the motion was properly granted as to the fourth affirmative defense and counterclaim. Likewise, Special Term properly granted the motion with respect to the fifth affirmative defense and counterclaim inasmuch as on the record presented there is no duty either contractual or implied in law obligating plaintiff to repurchase defendant’s inventory. (Appeal from order and judgment of Supreme Court, Monroe County, Boehm, J. — breach of contract.) Present — Hancock, Jr., J. P., Callahan, Denman, Green and Moule, JJ.