Summary
noting that "the failure to sufficiently demonstrate a material issue of fact requiring trial entitles plaintiff to an expedited determination of its claim for payment as to that merchandise actually delivered."
Summary of this case from Mobil Oil Guam, Inc. v. LeeOpinion
May 10, 1990
Appeal from the Supreme Court, New York County (Harold Tompkins, J.).
The essential facts of this dispute are uncomplicated. Defendant King World Productions, Inc. engaged Intratec Group, Ltd. to perform "certain architectural and design services with respect to King World's offices" located in Short Hills, New Jersey. Intratec contracted with plaintiff for office furniture which was shipped by plaintiff directly to King World's offices. Plaintiff's moving papers allege that $100,000 worth of furniture was delivered to King World out of a total order of $135,632.64, the balance of which is being held in storage by plaintiff for King World's account.
King World, in its answering papers, does not deny partial delivery or allege that the value of the furniture is less than the $100,000 claimed by plaintiff, except to allege, without specification, that "some of the furniture which was delivered is defective" (see, UCC 2-605). The IAS court reduced the amount of partial summary judgment sought by $1,000, apparently to compensate for the alleged damage, an allowance which plaintiff does not contest on this appeal. King World's defense to plaintiff's claim is predicated entirely on the assertion that Intratec was not authorized to enter into any agreement with a vendor on King World's behalf. King World further claims that it "already paid $50,000 to Intratec for the furniture at issue in this litigation." Intratec, however, contends that this payment was for architectural and design services.
King World's allegations in opposition to plaintiff's motion are patently insufficient to defeat its summary judgment motion. It is clear that Intratec disclosed its capacity as agent for King World since all of the invoices from plaintiff are captioned "Intratec Group Ltd for: King World" (see, Levy v. Gold Co., 119 A.D.2d 554, appeal after remand 141 A.D.2d 511, lv denied 73 N.Y.2d 704). Therefore, in the absence of clear and explicit evidence to the contrary, the liability of the agent may not be substituted for or added to that of its disclosed principal (Levy v. Gold Co., 141 A.D.2d 511, supra). It is obvious that an architectural firm engaged to furnish offices for a client possesses implied authority to purchase any necessary furnishings, except merchandise in which the client could not reasonably expect the architect to deal. Moreover, the conduct of the parties, particularly the absence of protest to the delivery of the furniture to King World's offices, is entirely consistent with Intratec's authority to purchase it on King World's behalf. Upon an improper delivery of goods a buyer may "(a) reject the whole; or (b) accept the whole; or (c) accept any commercial unit or units and reject the rest" (UCC 2-601). Rejection "must be within a reasonable time after their delivery or tender" (UCC 2-602), and any act inconsistent with the seller's ownership of the goods constitutes an acceptance (UCC 2-606 [c]), including their retention without a seasonable notice of revocation of acceptance (DiDomenico Packaging Corp. v. Nails Again, 139 Misc.2d 525). King World's acceptance of the goods ordered on its behalf is both consonant with a proper exercise of implied authority by Intratec and, in addition, bars King World from any remedy for breach as against plaintiff (UCC 2-607 [a]).
King World, in its pleadings in opposition to plaintiff's motion for partial summary judgment, suggests a number of possible issues of fact which might be raised by this case. It is well settled, however, that a party opposing summary judgment must "submit evidentiary facts or materials, by affidavit or otherwise * * * demonstrating the existence of a triable issue of ultimate fact" (Indig v. Finkelstein, 23 N.Y.2d 728, 729). As this court has stated, the opponent "is required to assemble, lay bare and reveal his proofs in order to show his defenses are real and capable of being established on trial (Chemical Bank v. Queen Wire Nail, 75 A.D.2d 999), and it is insufficient to merely set forth averments of factual or legal conclusions. (Lerner Stores Corp. v. Parklane Hosiery Co., 54 A.D.2d 1072.)" (Machinery Funding Corp. v. Loman Enters., 91 A.D.2d 528.) The failure to sufficiently demonstrate a material issue of fact requiring trial entitles plaintiff to an expedited determination of its claim for payment as to that merchandise actually delivered to and accepted by King World (UCC 2-201 [c]; 2-606 [1]; Di Sabato v Soffes, 9 A.D.2d 297, 299).
Concur — Kupferman, J.P., Ross, Ellerin, Wallach and Rubin, JJ.