Rosenberg v. Del-Mar Division, Champion Intern. Corp.
| Decision Date | 07 February 1977 |
| Docket Number | DEL-MAR |
| Parties | Alfred A. ROSENBERG, as assignee, etc., Appellant-Respondent, v.DIVISION, CHAMPION INTERNATIONAL CORPORATION, Respondent-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Benedict Ginsberg, New York City (Alfred A. Rosenberg, appellant-respondent pro se, of counsel, Charles E. Ramos, New York City, on the brief), for appellant-respondent.
Kronish, Lieb, Shainswit, Weiner & Hellman, New York City (Burton H. Brody, New York City, of counsel), for respondent-appellant.
Before LATHAM, Acting P.J., and MARGETT, SUOZZI and MOLLEN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for (1) breach of contract and (2) interference with prospective business advantage, the parties cross appeal from an order of the Supreme Court, Kings County, entered May 11, 1976, which (1) granted the branch of defendant's motion which sought summary judgment with respect to the second cause of action and (2) denied the branch of its motion which sought summary judgment with respect to the first cause of action.
Order modified, on the law, by (1) deleting the second decretal paragraph thereof and substituting therefor a provision granting the branch of the motion which sought summary judgment with respect to the first cause of action and (2) deleting from the first decretal paragraph thereof the provision for a severance. As so modified, order affirmed, with $50 costs and disbursements to defendant.
With regard to the contract claim, summary judgment was improperly denied. A motion for summary judgment cannot be defeated by mere conclusory statements which are devoid of evidentiary facts showing a bona fide issue requiring a trial. While plaintiff asserts the existence of a valid claim for breach of contract due to untimely delivery of goods ordered, it has not alleged evidentiary facts showing that any of the goods delivered by defendant were delivered late (see GTE Sylvania v. Jupiter Supply Co., 51 A.D.2d 993, 380 N.Y.S.2d 742).
Moreover, the contract claim is barred by reason of Res judicata. In a prior action between defendant and plaintiff's assignor, on the same contract, a judgment was obtained by the defendant herein for goods sold and delivered. It was essential in the prior action to find that no defense existed to the claim for payment. Since the prior action, of necessity, determined that no defense existed to the claim for payment, plaintiff cannot now raise, as an...
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