Opinion
570004/07.
Decided February 14, 2008.
Plaintiff appeals from a judgment of Small Claims Part of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered on or about November 28, 2006, in favor of defendant dismissing the action and awarding defendant $5,000 on its counterclaim.
PRESENT: DAVIS, J.P., SCHOENFELD, HEITLER, JJ.
Judgment (Raul Cruz, J.), entered on or about November 28, 2006, modified to vacate the award to defendant and dismiss its counterclaim, and as modified, affirmed, without costs.
We sustain the dismissal after trial of plaintiff's small claims action for goods sold and delivered. The record supports the court's determination that plaintiff accepted delivery of the goods under the parties' 2005 written agreement and failed to make payment as agreed. However, the award to defendant on its counterclaim cannot be sustained. Defendant's principal admitted at trial that defendant failed to deliver the merchandise required under the parties' subsequent 2006 contract, for which plaintiff tendered payment in full prior to the scheduled delivery. Inasmuch as defendant applied the payment tendered by plaintiff in 2006 to the outstanding balance under the 2005 agreement, "substantial justice" ( see CCA 1807) is served by the dismissal of defendant's counterclaim.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.