SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
May 27, 1968
ALUMINUM BUILDING PRODUCTS CORP., APPELLANT,
MARTIN KATZ CORPORATION, RESPONDENT
In an action to recover damages for breach of contract, in which defendant counterclaimed to recover (1) a balance owing for goods sold and delivered and (2) upon an account stated, plaintiff appeals from a judgment of the Supreme Court, Rockland County, dated February 14, 1968, in favor of defendant upon the granting of defendant's motion to dismiss the complaint and for summary judgment on its "counterclaim", pursuant to CPLR 3212.
Beldock, P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.
In our opinion, questions of fact are presented by the motion papers; and under such circumstances summary judgment may not be granted defendant even though plaintiff's reply does not make the specific denials to defendant's first counterclaim, allegedly pleaded pursuant to CPLR 3016 (subd. [f]) which are required by that rule to raise issues of fact as to delivery, performance, reasonable value or agreed price (cf. Curry v. Mackenzie, 239 N. Y. 267, 272; Anderson v. City of New York, 258 App. Div. 588, 591; Ias Becor Corp. v. Mezrahi, 22 A.D.2d 898; Ias Bicor Corp v. Mezrahi, 26 A.D.2d 636). Moreover, the counterclaim fails to number the items of defendant's claim, as required by that rule; and plaintiff therefore was not bound to make the specific denials required by that rule (Innis, Pearce & Co. v. G. H. Poppenberg, Inc., 213 App. Div. 789, 790).
Judgment reversed, on the law, with $20 costs and disbursements, and motion denied.
© 1998 VersusLaw Inc.