Pathmark Graphics Inc. v. J. M. Fields, Inc.
| Decision Date | 08 June 1976 |
| Parties | PATHMARK GRAPHICS INCORPORATED, Plaintiff, v. J. M. FIELDS, INC., Defendant-Appellant, and Dennis N. Timson et al., Additional Defendants on Counterclaims-Respondents, and Jack Sacs et al., Additional Defendants on Counterclaims. |
| Court | New York Supreme Court — Appellate Division |
A. J. Kirschner, New York City, for defendant-appellant.
P. F. Broderick, Bayside, for additional defendants on counterclaims-respondents.
Before KUPFERMAN, J.P., and MURPHY, LUPIANO, BIRNS and LANE, JJ.
Order, Supreme Court, New York County, entered March 3, 1975, denying defendant J. M. Fields, Inc.'s cross-motion for sanctions under CPLR 3126, for partial summary judgment, for a private referee to supervise disclosure, for a commission to depose a Pennsylvania bank, and for reasonable attorney's fees, unanimously modified on the law to the extent of granting said defendant partial summary judgment in the amount of $20,106 on the fifth, seventh through ninth and eleventh counterclaims against Dennis N. Timson and Mary Timson, with a severance of the remainder of the claims for trial, and as so modified the order is affirmed, without costs and disbursements and without prejudice to defendant J. M. Fields, Inc.'s further seeking a private referee to supervise disclosure and a commission to depose the Pennsylvania bank in the court below.
Examination of the record discloses that defendant J. M. Fields, Inc. is entitled to partial summary judgment in the amount of $20,106 on its claim to recover the payment made by suppliers to Dennis Timson. As sales promotion manager supervising a staff of over 30 employees and entrusted with the responsibility and discretion of placing orders and approving bills which amounted to more than $1,000,000 per annum, Dennis Timson was an agent of said defendant. Timson admitted knowledge of and subscribed to a statement of policy issued by his employer requiring that purchasing be based only on price and quality and that company employees not accept gratuities, favors or services from suppliers including borrowing money from suppliers or obtaining their endorsement or guaranty. It is axiomatic that a party who opposes summary judgment must reveal his proofs in order to show that matters set up in his answer are real and can be established upon a trial (DiSabato v. Soffes, 9 A.D.2d 297, 193 N.Y.S.2d 184 (1st Dept., 1959)). Unsigned depositions and general denials...
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