Power Equipment Co. v. Palmyra Electric Co.

90 A.D.2d 959, 456 N.Y.S.2d 550, 1982 N.Y. App. Div. LEXIS 19236

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1982
• Status: Published

Opinion

Order, insofar as it denied plaintiff’s cross motion for summary judgment, unanimously reversed, with costs to plaintiff, motion granted and appeal otherwise dismissed as moot. Memorandum: Plaintiff brought an action in Monroe County to recover the purchase price of an electric motor sold and delivered to defendant. In its answer, defendant denied the material allegations of the complaint. Thereafter, defendant brought an action in Wayne County against Hall Ski Lift Company, Inc. (Hall) to recover the purchase price of the same motor sold and delivered by defendant to Hall. After issue was joined in the Wayne County action, defendant moved in Monroe County for an order consolidating both actions; plaintiff cross-moved for summary judgment in this action. Special Term denied the motion and the cross motion, and both parties appeal. The papers submitted by defendant on its motion for consolidation include averments which constitute admissions of all of the material allegations of plaintiff’s complaint. Moreover, the affidavit submitted by defendant in response to plaintiff’s cross motion fails to “show facts sufficient to require a trial of any issue of fact” (CPLR 3212, subd [b]), nor does it demonstrate “acceptable excuse” for the failure to have done so (Zuckerman v City of New York, 49 NY2d 557, 562). Plaintiff’s cross motion for summary judgment should have been granted (see Eastern States Paint & Varnish Co. v Hudson Maintenance Corp., 71 AD2d 601). Thus viewed, there is no need to address the issues raised on defendant’s appeal. (Appeals from order of Supreme Court, Monroe County, Curran, J. — consolidate actions; summary judgment.) Present — Dillon, P. J., Simons, Callahan, Boomer and Schnepp, JJ.