Lighting Horizons, Inc. v. E.A. Kahn & Co.
| Decision Date | 19 May 1986 |
| Citation | 502 N.Y.S.2d 398,120 A.D.2d 648 |
| Parties | LIGHTING HORIZONS, INC., Appellant, v. E.A. KAHN & CO., INC., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Martin, Van De Walle, Guarino & Donohue, Great Neck (Nicholas J. Donohue, of counsel), for appellant.
Jerome Cooper, Lynbrook, for respondent.
Before LAZER, J.P., and MANGANO, GIBBONS and BRACKEN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover for goods sold and delivered, the plaintiff Lighting Horizons, Inc. appeals from so much of an order of the Supreme Court, Nassau County (Burke, J.), dated April 1, 1985, as denied its motion for summary judgment and granted the defendant E.A. Kahn & Co. Inc.'s cross motion for leave to serve an amended answer to the plaintiff's complaint.
Order reversed insofar as appealed from, on the law, with costs, motion granted, cross motion denied, the plaintiff is awarded the principal sum of $72,868 plus interest upon $58,756.52 of that sum from August 2, 1983, and interest upon $14,111.48 of that sum from July 29, 1983, and the matter is remitted to the Supreme Court, Nassau County for entry of an appropriate judgment.
The plaintiff properly submitted evidentiary proof in admissible form with its motion for summary judgment (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). The defendant, in response, provided conclusory allegations that the plaintiff delivered defective fixtures and equipment, and made an unsubstantiated claim that there was a requirements contract between itself and the plaintiff, which the plaintiff breached. Mere allegations of delivery of defective materials will not, without more, preclude a court from granting a plaintiff's motion for summary judgment (see, GTE Sylvania v. Jupiter Supply Co., 51 A.D.2d 993, 994, 380 N.Y.S.2d 742; General Bldg. Supply Corp. v. Shapn, Inc., 35 A.D.2d 550, 551, 313 N.Y.S.2d 459).
The defendant's parol recitation of the requirements contract, premised as it was upon a $135,000 budget, was not admissible, as the Statute of Frauds requires a writing for any contract concerning the sale of goods in excess of $500 to be enforced (UCC 2-201[1]; Crabtree Automotive v. BMW of North Amer., 105 A.D.2d 825, 826, 482 N.Y.S.2d 28). In light of the failure of the defendant to submit evidentiary proof in admissible form or an acceptable excuse for not doing so, it has not made a sufficient showing to defeat the plaintiff's motion for summary...
To continue reading
Request your trial
-
SOS Oil Corp. v. Norstar Bank of Long Island
...is sought on a matter which, if rendered, could not have any practical effect on the existing controversy" (Lighting Horizons v. Kahn & Co., 120 A.D.2d 648, 649, 502 N.Y.S.2d 398). The plaintiff's cross appeal seeks review of that portion of the order and judgment which awarded summary judg......
-
Trebor Sportswear Co., Inc. v. The Ltd. Stores, Inc.
...it has not made a sufficient showing to defeat the plaintiff's motion for summary judgment. Lighting Horizons, Inc. v. E.A. Kahn & Co., 120 A.D.2d 648, 649, 502 N.Y.S.2d 398, 399 (2d Dep't 1986) (citations omitted). The district court was correct, therefore, in awarding summary judgment in ......
-
Lzg Realty Llc v. H.D.W.2005 Forest Llc
...have any practical effect on the existing controversy ( see Habe v. Triola, 154 A.D.2d 437, 547 N.Y.S.2d 235; Lighting Horizons v. Kahn & Co., 120 A.D.2d 648, 649, 502 N.Y.S.2d 398). Since these are, in part, declaratory judgment actions, the matters must be remitted to the Supreme Court, R......
-
First Northern Mortgagee Corp. v. Yatrakis
...cross motion seeks a determination that could not have any practical effect on the existing controversy (see, Lighting Horizons v. Kahn & Co., 120 A.D.2d 648, 502 N.Y.S.2d 398). At bar, the amended answer requested by the appellant included only a supplemental counterclaim, the outcome of w......