Rodin v. Universal Button Co.

Appellate Division of the Supreme Court of New York

Rodin v. Universal Button Co.

18 A.D.2d 813, 236 N.Y.S.2d 384, 1963 N.Y. App. Div. LEXIS 5027

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 7, 1963

StatusPublished

This text of 18 A.D.2d 813 (Rodin v. Universal Button Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rodin v. Universal Button Co., 18 A.D.2d 813, 236 N.Y.S.2d 384, 1963 N.Y. App. Div. LEXIS 5027 (N.Y. Ct. App. 1963).

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Opinion

In an action to recover damages for breach of contract, the defendant appeals from so much of an order of the Supreme Court, Queens County, entered August 24, 1962, as granted plaintiff’s motion for summary judgment (Rules Civ. Prae., rule 113) and directed an assessment of damages (see 35 Mise 2d 821). Order, insofar as appealed from, reversed, with $10 costs and disbursements, and motion for summary judgment denied. In our opinion, the record presents triable issues of fact which should not have been summarily decided on motion. Plaintiff’s cause of action is based on defendant’s repudiation of its written purchase order for certain "forming” and sewing machines. Defendant’s third affirmative defense, fairly construed, is that said purchase order was delivered for a special purpose and not as a binding agreement. This defense presents an issue of fact [814]*814(Grannis v. Stevens, 216 N. Y. 583, 587; Grierson v. Mason, 60 N. Y. 394, 397; People v. Kennedy, 16 A D 2d 306, 307-308), which is neither sham nor frivolous (see Sprung v. Jaffe, 3 N Y 2d 539, 543). Summary judgment, therefore, may not he granted (Falk v. Goodman, 7 N Y 2d 87, 91; Stone v. Goodson, 8 N Y 2d 8, 12). Nor should the question of credibility be determined upon a motion for summary judgment (Di Donna v. Sachs, 9 A D 2d 576). Ughetta, Acting P. J., Kleinfeld, Hill, Rabin and Hopkins, JJ., concur.

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In an action to recover damages for breach of contract, the defendant appeals from so much of an order of the Supreme Court, Queens County, entered August 24, 1962, as granted plaintiff’s motion for summary judgment (Rules Civ. Prae., rule 113) and directed an assessment of damages (see 35 Mise 2d 821). Order, insofar as appealed from, reversed, with $10 costs and disbursements, and motion for summary judgment denied. In our opinion, the record presents triable issues of fact which should not have been summarily decided on motion. Plaintiff’s cause of action is based on defendant’s repudiation of its written purchase order for certain "forming” and sewing machines. Defendant’s third affirmative defense, fairly construed, is that said purchase order was delivered for a special purpose and not as a binding agreement. This defense presents an issue of fact [814]*814(Grannis v. Stevens, 216 N. Y. 583, 587; Grierson v. Mason, 60 N. Y. 394, 397; People v. Kennedy, 16 A D 2d 306, 307-308), which is neither sham nor frivolous (see Sprung v. Jaffe, 3 N Y 2d 539, 543). Summary judgment, therefore, may not he granted (Falk v. Goodman, 7 N Y 2d 87, 91; Stone v. Goodson, 8 N Y 2d 8, 12). Nor should the question of credibility be determined upon a motion for summary judgment (Di Donna v. Sachs, 9 A D 2d 576). Ughetta, Acting P. J., Kleinfeld, Hill, Rabin and Hopkins, JJ., concur.

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Bluebook (online)

18 A.D.2d 813, 236 N.Y.S.2d 384, 1963 N.Y. App. Div. LEXIS 5027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodin-v-universal-button-co-nyappdiv-1963.

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