Opinion
February 2, 1996
Appeal from the Supreme Court, Erie County, Sconiers, J.
Present — Pine, J.P., Fallon, Wesley, Doerr and Davis, JJ.
Order and judgment unanimously reversed on the law without costs and motion denied. Memorandum: Defendant interposed a valid counterclaim for breach of the underlying sales agreement. Thus, Supreme Court erred in granting plaintiff partial summary judgment for the amount allegedly due on goods sold and delivered (see, Created Gemstones v. Union Carbide Corp., 47 N.Y.2d 250, 255). There was no statutory or contractual basis for the court's award of attorney's fees to plaintiff (see, Locascio v. James V. Aquavella, M.D., P.C., 185 A.D.2d 689), nor is there a basis in the record for a discretionary award of attorney's fees to plaintiff as a sanction for frivolous conduct by defendant.