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Litho Com., v. Next Print. Design

Appellate Division of the Supreme Court of New York, First Department
Apr 1, 2004
6 A.D.3d 168 (N.Y. App. Div. 2004)

Opinion

3132.

Decided April 1, 2004.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered September 29, 2003, which denied plaintiff's motion for summary judgment dismissing defendant's counterclaims, unanimously reversed, on the law, without costs, the motion granted and the counterclaims dismissed. The Clerk is directed to enter judgment accordingly.

William G. O'Donnell, Jr. for Plaintiff-Appellant.

Richard J. Pilson for Defenant-Respondent.

Before: Andrias, J.P., Williams, Lerner, Friedman, Marlow, JJ.


Defendant contracted to purchase used printing presses from plaintiff and now alleges that the contract of sale was breached because the presses are defective. Defendant, however, agreed in its contract with plaintiff to take the presses "as is" and, accordingly, has no claim for breach of contract based on the condition of the machines ( see Sarfowaa v. Claflin Apts. LLC, 284 A.D.2d 228).

Similarly, we find that defendant's remaining counterclaims sounding in fraud are also precluded under the present circumstances. Here, defendant's mere speculation and surmise that its inspector, Michael Caldarola, may have been an undisclosed agent of plaintiff, who somehow subverted defendant's second pre-purchase opportunity to inspect the presses is unsupported on this record, and, thus, patently insufficient to raise a triable issue of material fact to defeat summary relief ( see Sutton v. East River Sav. Bank, 55 N.Y.2d 550, 553-554).

We have considered defendant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Litho Com., v. Next Print. Design

Appellate Division of the Supreme Court of New York, First Department
Apr 1, 2004
6 A.D.3d 168 (N.Y. App. Div. 2004)
Case details for

Litho Com., v. Next Print. Design

Case Details

Full title:LITHO COMMUNICATIONS, INC., Plaintiff-Appellant, v. NEXT PRINTING AND…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Apr 1, 2004

Citations

6 A.D.3d 168 (N.Y. App. Div. 2004)
773 N.Y.S.2d 561