Greenwood Packing Corp. v. Associated Telephone Design, Inc.

• Decision Date: 02 May 1988
• Citation: 140 A.D.2d 303,527 N.Y.S.2d 811
• Parties: GREENWOOD PACKING CORP., Appellant, v. ASSOCIATED TELEPHONE DESIGN, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 811

527 N.Y.S.2d 811

140 A.D.2d 303

GREENWOOD PACKING CORP., Appellant, v.ASSOCIATED TELEPHONE DESIGN, INC., Respondent.

Supreme Court, Appellate Division Second Department.

May 2, 1988.

Blustein & Slobod, Middletown (Burt J. Blustein, of counsel), for appellant.

Elliott H. Pollack, New York City(Glenn P. Stone, of counsel), for respondent.

Before THOMPSON, J.P., and KUNZEMAN, RUBIN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for recovery of a deposit, the plaintiff appeals from an order of the Supreme Court, Orange County(Isseks, J.), dated August 29, 1986, which granted the defendant's motion, in effect, for summary judgment dismissing the complaint upon the ground specified in CPLR 3211(a)(1), namely, that a defense was founded upon documentary evidence, and which denied the plaintiff's motion for summary judgment.

ORDERED that the order is modified by deleting the provision granting the defendant's motion and substituting therefor a provision denying that motion, and adding thereto a provision searching the record, and thereupon granting summary judgment to the defendant dismissing the plaintiff's second, third, and fourth causes of action; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff and the defendant entered into negotiations concerning the purchase from and the installation and servicing by the defendant of telephone replacement equipment.In December 1985the defendant sent the plaintiff a proposed contract which provided, inter alia, that the purchase price included installation and all wiring and cabling, that one-third of the purchase price was to be paid upon execution of the contract, that "[the] deposit is not refundable" and that "Acceptance is subject to contract * * * approval by the home office".The plaintiff did not agree with some of the essential terms as proposed by the defendant governing service and the cost of upgrading equipment in the future.At the suggestion of the defendant's representative, the plaintiff made handwritten changes on the defendant's proposed contract and signed and returned it to the defendant with a check for one-third the purchase price.The document, consisting of the defendant's offer, the plaintiff's counteroffer, and the plaintiff's signature, is silent as to the location of a key service box and as to the amount of cabling required.Spaces provided for "order date" and approximate "installation date" are left blank.

The record establishes that the plaintiff tendered the check for one-third of the purchase price subject to full approval by the defendant of all changes on the contract made by the plaintiff.The record also establishes that shortly after receipt of the contract and check, the defendant ordered equipment and engaged a subcontractor, apparently without further communicating with the plaintiff regarding the latter's proposed changes.The defendant's subcontractor thereafter appeared at the plaintiff's premises to survey the site and lay the cable and, with the permission of the person designated as the plaintiff's "contact", proceeded to do so.A dispute arose, however, as to the location of the key service box and as to whether the plaintiff was responsible for the cost of additional cable if the service box were placed where, as the defendant claims, the plaintiff"insisted" and, as the plaintiff claims, the parties had previously agreed.That dispute was not resolved and the defendant's subcontractor left the plaintiff's premises.The plaintiff's president attested without contradiction that the parties thereafter attempted unsuccessfully to resolve their differences.The record is unclear, however, as to whether these further negotiations concerned only the cost of the additional cabling or whether the terms of the plaintiff's original counteroffer were still at issue.

Relying on the "Deposit is not refundable" clause of the document executed by the plaintiff, the defendant refused to return the plaintiff's payment.Relying on the fact that its tender of payment was conditioned on the defendant's full approval of its terms, the plaintiff asserts that defendant never accepted its counterproposal and that, therefore, no binding contract existed.By its first and second essentially interchangeable causes of action, the plaintiff seeks damages in the amount of its payment.By its third and fourth causes of action, the plaintiff seeks an amount representing attorney's fees incurred in the prosecution of this action and $150,000 in punitive damages.Finding that the document executed by the plaintiff established the existence of a binding agreement, the Supreme Court dismissed the complaint pursuant to CPLR 3211(a)(1).

In order to prevail on a defense founded on documentary evidence, the document relied upon must definitively dispose of the plaintiff's claim ( see, Reilly v. Town of Brookhaven...