Turner Construction Co. v. OC Iron Works, Inc.

Appellate Division of the Supreme Court of New York

Turner Construction Co. v. OC Iron Works, Inc.

19 A.D.3d 260, 796 N.Y.S.2d 918, 2005 N.Y. App. Div. LEXIS 7009

Appellate Division of the Supreme Court of the State of New York·Decided June 23, 2005·Published

Opinion

Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered December 2, 2004, which, to the extent appealed from as limited by the briefs, granted plaintiffs motion for partial summary judgment on the issue of liability, unanimously affirmed, with costs.

Plaintiff’s entitlement to partial summary judgment on liability was supported by undisputed facts and testimonial admissions. Defendant failed to establish the elements of adhesion in this commercial subcontract between sophisticated parties. There is no showing that the parties had any legal obligation to contract with one another (see Levine v Shell Oil Co., 28 [261] NY2d 205, 213 [1971]), or that defendant had no right to walk away if it felt the terms were too onerous.

Questions as to the extent of damages were properly left for separate trial (see CPLR 3212 [c]; Nitti v Goodfellow, 256 AD2d 1082, 1083 [1998], lv dismissed 93 NY2d 999 [1999]).

We have considered defendant’s remaining arguments and find them without merit. Concur—Buckley, P.J., Tom, Andrias, Sullivan and Sweeny, JJ.

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Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered December 2, 2004, which, to the extent appealed from as limited by the briefs, granted plaintiffs motion for partial summary judgment on the issue of liability, unanimously affirmed, with costs.

Plaintiff’s entitlement to partial summary judgment on liability was supported by undisputed facts and testimonial admissions. Defendant failed to establish the elements of adhesion in this commercial subcontract between sophisticated parties. There is no showing that the parties had any legal obligation to contract with one another (see Levine v Shell Oil Co., 28 [261] NY2d 205, 213 [1971]), or that defendant had no right to walk away if it felt the terms were too onerous.

Questions as to the extent of damages were properly left for separate trial (see CPLR 3212 [c]; Nitti v Goodfellow, 256 AD2d 1082, 1083 [1998], lv dismissed 93 NY2d 999 [1999]).

We have considered defendant’s remaining arguments and find them without merit. Concur—Buckley, P.J., Tom, Andrias, Sullivan and Sweeny, JJ.

Turner Construction Co. v. OC Iron Works, Inc., 19 A.D.3d 260, 796 N.Y.S.2d 918, 2005 N.Y. App. Div. LEXIS 7009 (N.Y. Ct. App. 2005).

Pincite

19 A.D.3d 260 (Turner Construction Co. v. OC Iron Works, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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