Opinion
February 19, 1963
Order entered on May 24, 1961 and judgment entered thereon on August 10, 1961, granting summary judgment to plaintiff as to the first cause of action and denying summary judgment as to the second cause of action, are unanimously modified, on the law, with costs to plaintiff-appellant, and summary judgment is directed in favor of plaintiff on both causes of action, as prayed for in the complaint. In its first cause of action plaintiff sought replevin of 20 television sets, installed in defendant's hotel, and in the second cause of action plaintiff sought to recover a balance due for the rental of said sets in the sum of $2,100. Plaintiff agreed to install the 20 sets, service and maintain them in good working order. The agreement provided that any complaint relevant to such service must be in writing. Although defendant now contends that plaintiff did not install the equipment properly nor repair and maintain it properly, no such complaint was ever made in writing. Furthermore, during each of the four years of the contract period, defendant made substantial payments. Finally, some months after the agreement expired by its terms, defendant wrote to plaintiff explaining that business was not good and asking if it could "possibly make some arrangements within our means to reduce the amount due". Under the circumstances, defendant raises no triable issue of fact.
Concur — Botein, P.J., Breitel, Rabin, Eager and Steuer, JJ.