Sunshine Chemical Corp. v. Dyna-Cool Air Conditioning & Heating Co.

79 A.D.2d 634, 433 N.Y.S.2d 617, 1980 N.Y. App. Div. LEXIS 13988

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 1980
• Status: Published

Opinion

in an action, inter alia, to recover damages for breach of warranties, defendant appeals from so much of an order of the Supreme Court, Nassau County, dated February 27, 1980, as denied its motion for summary judgment on its counterclaims for (1) the balance due on the purchase price of the air cleaning system defendant sold plaintiff, and (2) the reasonable value of services rendered with respect to plaintiff’s cooling system. Order modified, on the law, by deleting therefrom the provision denying defendant’s motion with respect to its second counterclaim and substituting therefor a provision granting defendant’s motion for summary judgment as to its second counterclaim. As so modified, order affirmed insofar as appealed from, without costs or disbursements. Although there is no dispute regarding the services rendered for plaintiff on the cooling system or that $2,052.55 is the reasonable value thereof, there is a triable issue of fact regarding the counterclaim for the balance of the purchase price of the air cleaning system, namely whether the system installed by defendant worked. Defendant alleges in conclusory fashion that it installed the system according to the contract. Plaintiff responds in conclusory fashion that the air cleaning system never worked. A trial is necessary. Damiani, J. P., Titone, Lazer and Cohalan, JJ., concur.