Central Irrigation Supply v. Putnam Country Club Associates, LLC

• Decision Date: 28 March 2006
• Docket Number: 2005-03260.
• Citation: Central Irrigation Supply v. Putnam Country Club Associates, LLC, 27 A.D.3d 684, 812 N.Y.S.2d 633, 2006 NY Slip Op 2326 (N.Y. App. Div. 2006)
• Parties: CENTRAL IRRIGATION SUPPLY, Appellant, v. PUTNAM COUNTRY CLUB ASSOCIATES, LLC, Respondent.
• Court: New York Supreme Court — Appellate Division

27 A.D.3d 684

812 N.Y.S.2d 633

2006 NY Slip Op 02326

CENTRAL IRRIGATION SUPPLY, Appellant, v. PUTNAM COUNTRY CLUB ASSOCIATES, LLC, Respondent.

2005-03260.

Appellate Division of the Supreme Court of the State of New York, Second Department.

March 28, 2006.

In an action to recover damages for breach of contract, the plaintiff appeals from so much of an order of the Supreme Court, Putnam County (O'Rourke, J.), dated February 28, 2005, as granted that branch of the defendant's renewed motion which was for summary judgment on the issue of liability with respect to its first counterclaim to recover liquidated damages under the parties' contract.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant made a prima facie showing of entitlement to judgment as a matter of law on the issue of liability with respect to its first counterclaim to recover under the liquidated damages provision of the parties' contract, by demonstrating that the plaintiff did not complete the relevant work called for by the contract by the date set forth therein (see W.W.W. Assoc. v Giancontieri, 77 NY2d 157 [1990]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). In opposition, the plaintiff failed to raise a triable issue of fact. In particular, the affidavit of the plaintiff's principal in opposition to that branch of the defendant's renewed motion which was for summary judgment on the issue of liability with respect to its first counterclaim was an attempt to avoid the consequences of earlier admissions he made in his examination before trial, by raising feigned issues which were insufficient to defeat that branch of the motion (see Abramov v Miral Corp., 24 AD3d 397 [2005]).

The...