Opinion
No. 2893.
February 21, 2008.
Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered April 23, 2007, which denied Plaintiffs motion for partial summary judgment dismissing Pegno's counterclaim, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Mazur, Carp Rubin, P.C., New York (Sayward Mazur of counsel), for appellant.
Alvin Goldstein, New York, for respondent.
Before: Lippman, P.J., Tom, Nardelli, Catterson and Moskowitz, JJ.
Whether all the damages claimed by Pegno in its counterclaim fall within the scope of the contract provision disclaiming consequential damages is immaterial under the circumstances of this case. The contract specifically prohibits recovery for "substitute products" and the affidavit of Plaintiffs principal that the claimed damages were "substitute products" was unrebutted. Furthermore, defendant failed to offer any proof in admissible form that it suffered damages that were not related to substitute products or that the contract remedy failed of its essential purpose. (UCC 2-719; J.C. MacElroy Co. v Arben Corp., 276 AD2d 434).