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Slomin's, Inc. v. Niranjan

Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts
Jan 13, 2012
2012 N.Y. Slip Op. 50055 (N.Y. App. Term 2012)

Opinion

2011-119 Q C.

01-13-2012

Slomin's, Inc., Appellant, v. Violet Niranjan and Permaud Naidu, Respondents.


PRESENT: , J.P., WESTON and RIOS, JJ

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered November 15, 2010. The order denied plaintiff's motion for summary judgment on the complaint and to dismiss defendant Permaud Naidu's counterclaim.

ORDERED that order is modified by providing that the branch of plaintiff's motion seeking to dismiss defendant Permaud Naidu's counterclaim is granted; as so modified, the order is affirmed, without costs.

In this action based upon defendants' alleged nonpayment of monies owed pursuant to an alarm installation contract and an alarm monitoring contract, plaintiff moved for summary judgment on the complaint and to dismiss defendant Permaud Naidu's counterclaim for breach of contract. In opposition to the motion, defendants alleged that they had paid the charges due under the contracts for the months in question and that, after the date of plaintiff's alleged cancellation of the contracts, plaintiff's representatives had continued to indicate, in essence, that the account was still in effect. The Civil Court denied plaintiff's motion.

As the Civil Court properly found that defendants' nonconclusory allegations in opposition to plaintiff's motion, including the claim that they had paid the charges for the months in question, raised triable issues of fact, we affirm the denial of the branch of plaintiff's motion seeking summary judgment on the complaint. However, defendants' opposing papers failed to address the branch of plaintiff's motion seeking the dismissal of defendant Permaud Naidu's counterclaim based upon express counterclaim-waiver provisions in the two contracts. Thus, as there was no showing that the counterclaim sounded in fraud (Federal Deposit Ins. Corp. v Marino Corp., 74 AD2d 620 [1980]) or that the counterclaim-waiver provisions were otherwise unenforceable, that branch of plaintiff's motion should have been granted.

Accordingly, the order is modified by providing that the branch of plaintiff's motion seeking to dismiss defendant Permaud Naidu's counterclaim is granted.

Golia, J.P., Weston and Rios, JJ., concur.


Summaries of

Slomin's, Inc. v. Niranjan

Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts
Jan 13, 2012
2012 N.Y. Slip Op. 50055 (N.Y. App. Term 2012)
Case details for

Slomin's, Inc. v. Niranjan

Case Details

Full title:Slomin's, Inc., Appellant, v. Violet Niranjan and Permaud Naidu…

Court:Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts

Date published: Jan 13, 2012

Citations

2012 N.Y. Slip Op. 50055 (N.Y. App. Term 2012)