Belmet Products, Inc. v. Merit Enterprises, Inc.

• Decision Date: 04 January 1963
• Parties: BELMET PRODUCTS, INC., Plaintiff, v. MERIT ENTERPRISES, INC., Defendant.
• Court: New York City Court

Page 254

236 N.Y.S.2d 254

37 Misc.2d 368

BELMET PRODUCTS, INC., Plaintiff, v. MERIT ENTERPRISES, INC., Defendant.

New York City Civil Court, Special Term, Kings County, Part I.

Jan. 4, 1963.

S. Frederick Placer, New York City, for plaintiff, for the motion.

Irving L. Stein, New York City, for defendant, in opposition.

MURRAY H. PEARLMAN, Judge.

This motion came on to be heard before me on December 7, 1962 at which time defendant's attorney requested time to submit his opposing affidavit. Said request was granted and the defendant was given until December 21, 1962 to submit his papers in opposition.

This action was commenced to recover the sum of $5670.66 for goods manufactured, sold and delivered to the defendant pursuant to written orders therefor, between July 20, 1961 and December 1, 1961, including trucking charges, and upon an account stated.

The first cause of action alleged in the verified complaint is pleaded in compliance with the provisions of Sec. 255-a of the Civil Practice Act. Annexed to the complaint is a schedule itemizing and describing each of the items sued for, the agreed price thereof and the dates of delivery of each. Defendant's answer fails to comply with the provisions of the aforesaid Sec. 255-a of the C.P.A. and thus leaves no issue with respect to the allegations of the first cause of action. (John Simmons Co. Inc. v. Well Diggers, Inc., 206 Misc. 874, 135 N.Y.S.2d 538.) (Spiegel, Inc. v. Fashion Play Togs, Inc., Sup., 83 N.Y.S.2d 762.) (Bertolf Bros., Inc. v. Leuthardt, 261 App.Div. 981, 26 N.Y.S.2d 114.) (International Milk Co., Inc. v. Cohen et al., 219 App.Div. 308, 219 N.Y.S. 593.) (Sinram Bros., Inc. v. Naples Realty Co., Inc., 224 App.Div. 369, 231 N.Y.S. 173.)

Moreover, in defendant's examination before trial, quoted verbatim in the moving affidavit, defendant's officer, expressly conceded by stipulation on the record that defendant received the described items sued for and that it has not paid the agreed prices therefor, including the trucking charges. Additionally, defendant's affidavit expressly admits plaintiff's first cause of action saying, 'Defendant intentionally does not deny delivery, reasonable value or agreed price'.

It appears affirmatively that no issues of fact exist as to plaintiff's first cause of action, and that it is thus entitled to summary judgment thereon, despite defendant's interposition of a counterclaim, the subject matter of which will be discussed, ante. (Nopco Chemical Company v. Milner, 12 A.D.2d 942, 210 N.Y.S.2d 874.) (Smith v. Cranleigh, Inc., 224 App.Div. 376, 231 N.Y.S. 201.) (Gallagher Switchboard Corp. v. Heckler Elec. Co., 34 Misc.2d 256, 229 N.Y.S.2d 623.)

As to plaintiff's second cause of action on an account stated, the answer merely denies the same upon information and belief. The answering affidavit repeats that form of denial and fails to factually show that the defendant did not receive, retain and thus accept the statements of account mailed to the defendant, as sworn to in the verified complaint and moving affidavit.

On his examination before trial, defendant's officer, when asked whether defendant had received plaintiff's statements of December 31, 1961 and of January 31, 1962, replied that he did not know. Certainly, since the examination before trial, defendant has had ample opportunity to ascertain whether it received, retained and thus accepted plaintiff's statements of account as rendered. The unsupported denial, upon information and belief, is insufficient to raise any issue of fact on plaintiff's second cause of action. (N. Y. Telephone Co. v. Ladenheim Fixtures Corp., 14 Misc.2d 939, 181 N.Y.S.2d 157.)

Before proceeding to a discussion of the alleged defense and counterclaim interposed by the defendant, it may be well to restate the principle that the mere assertion of a counterclaim unsupported by evidentiary proof that it is factually and legally sustainable at trial does not bar relief to a plaintiff under Rule 113 of the Rules of Civil Practice (Nopco Chemical Co. v. Milner supra.) (Smith v. Cranleigh, Inc. supra, and cases therein cited.) (Gallagher Switchboard Corp. v. Heckler Elec. Co., supra.) (Kleinman v. B. & M. Cleaners, 37 Misc.2d 117, 234 N.Y.S.2d 854.)

The rule has always been that to defeat a motion for summary judgment, evidentiary facts, not surmise, conjecture, arguments, hearsay or suspicion, must be shown (Shapiro v. Health Insurance Plan of Greater N. Y., 7 N.Y.2d 56, 63, 194 N.Y.S.2d 509, 515, 163 N.E.2d 333, 337). 'The very object of a motion * * * is to separate what is formal or pretended in denial or averment from what is genuine and substantial, so that only the latter may subject a suitor to the burden of a trial' (Richare v. Credit Suisse, 242 N.Y. 346, 350, 152 N.E. 110, 111, 45 A.L.R. 1041). The proof offered by affidavit or otherwise must disclose the presence of a genuine triable issue rather than a formal, feigned, perfunctory or shadowy one (Schillinger v. North Hills Realty Corporation, 15 A.D.2d 539, 540, 222 N.Y.S.2d 972, 974). The remedy would serve no useful purpose if frivolous and transparently insufficient proof were held to create a triable issue (Hanrog Distributing Corporation v. Hanioti, 10 Misc.2d 659, 54 N.Y.S.2d 500).

The onus is on the party resisting the motion to assemble, lay bare and reveal his proof to show that his claim is real and capable of being established at trial (Di Sabato v. Soffes, 9 A.D.2d 297, 301, 193 N.Y.S.2d 184). In the absence of an apparent genuine and substantial issue of fact, the Court may and should dispose of the matter upon the law and direct judgment accordingly (Ball v. United Artists Corporation, 13 A.D.2d 133, 135-136, 214 N.Y.S.2d 219, 222-223). See also (Irving Weis and Co. v. Offenberger, 31 Misc.2d 628, 220 N.Y.S.2d 1001).

Defendant's first defense--not by way of counterclaim--alleges untimely delivery of certain parts to be used by defendant in the manufacture and sale of certain skillets. In the absence of plea and proof of damages occasioned by said untimely delay, the pleaded delay does not constitute a bar to plaintiff's recovery. Moreover, the unquestioned acceptance of late deliveries and payment for them, which is the case here, constitutes full performance of plaintiff's obligation.

'From acceptance without complaint, from payment for the goods in full without objection, the inference of fact may, at times, arise that there was an implied agreement that the belated delivery should be accepted by the buyer as full satisfaction of the seller's obligation. Failure to give notice of claim of breach is, even without the statute, cogent proof of such an understanding and agreement.' (William C. Atwater & Co. v. Panama R. Co., 255 N.Y. 496, 502, 175 N.E. 189, 191.) See also (Robinson Clay Prod. Co. of N. Y. v. John H. Thatcher & Sons, Sup., 150 N.Y.S. 658.) (Kraut v. Nordlinger, 216 App.Div. 409, 215 N.Y.S. 496.)

Defendant's letter of December 16, 1960 attached to the answering affidavit, refers to delay in delivery of 'production samples' and not to the manufactured covers and pans which it later accepted and paid for without complaint as to untimeliness.

The written orders between the parties for the manufacture of the dies, skillets and covers provided in part as follows:

'COMMERCIAL STAMPING: The only warranty which the seller makes in connection with the material furnished buyer under the terms of the buyers order is that material used shall be of a good quality and that all stamping shall conform to the commercial standard generally employed in the metal stamping trade.

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'CLAIMS: Written claims for shortages must be made within one week from receipt of the goods. If any material furnished by Seller proves defective, or not as ordered, he must be notified in writing within one week from receipt of shipment and Seller shall have the option of inspecting the goods on Buyer's premises or of taking back the goods and deciding whether he shall replace them or not. Under no circumstances will Seller allow or be liable for damages or any claim for expense in using Seller's product.

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'DIES & TOOLS: Since all prices for tooling represent only the actual labor costs to the Seller, the tools, while Buyer's property, remain in the Seller's possession, but will be surrendered at an additional cost of 25% to cover overhead. Tools will be kept in repair and renewed at Seller's expense; but Seller accepts no responsibility for the operation of these dies when used in any other plant than Seller's or after they have been once removed. Dies not used for two years may be scrapped without notice, unless otherwise specifically agreed in writing. Seller is expressly granted a lien on all of the Buyer's metals, goods and raw materials in the Seller's possession, and Seller may retain the same as security until the full payment by the Buyer of all the charges to the Buyer for labor or services theretofore performed by Seller for the Buyer.' (emphasis supplied)

The existence and defendant's knowledge of the foregoing terms and conditions are not denied by it.

Admittedly, plaintiff produced for defendant some 16,000 covers and pans from the dies manufactured by plaintiff for defendant over a period of time commencing January 1961 to December, 1961, all of which were received and sold by defendant to its customers. Without denial, it had paid the plaintiff some $20,000.00 therefor.

On November 13, 1961, defendant wrote to the plaintiff advising it that on or before January 25, 1962, it would pay plaintiff the 'unamortized balance' due on the dies, saying 'It is understood that this tooling and dies become our property, not to be used by anyone else but you, and are to be turned over to us immediately upon demand.'

On December 4, 1961, defendant paid plaintiff $5807.99 in full payment of the unamortized balance of the tools and dies. There is no denial that the defendant prior to December 4,...