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RYAN READY MIXED CONCRETE CORPORATION v. PRELOAD COMPANY (07/15/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


July 15, 1968

RYAN READY MIXED CONCRETE CORPORATION, APPELLANT,
v.
PRELOAD COMPANY, INC., RESPONDENT

Beldock, P. J., Christ and Murder, JJ., concur; Benjamin and Martuscello, JJ., dissent and vote to affirm the order on the ground that the affidavits indicate that a triable issue of fact exists as to whether plaintiff was to deliver dry or wet concrete, specification as to which was not provided for in the written order.

In our opinion, however, such claim provides no basis for the denial of the motion for summary judgment. Significantly, there is no specification in the purchase order requiring that the concrete be delivered at the construction site as a "dry batch" (no water added) and, in our view, whether or not the engineer gave such instructions is immaterial since there was no requirement in the order that the concrete was to meet his specifications. Rather, it appears to us, upon a fair reading of the order, that the engineer's function was merely to assure that the concrete complied with the specifications of the Village of Garden City. Moreover, (a) no claim is made that the Testing Laboratory mentioned in defendant's purchase order found any defects in the concrete either at plaintiff's plant or at defendant's job site, (b) no affidavit is presented by the consulting engineer that any instructions were given that no water was to be added at plaintiff's plant, (c) no claim is made that the Testing Laboratory mentioned in defendant's purchase order was given any such instructions, (d) defendant's own witnesses in their affidavits appear to be in conflict as to whether water was in fact added to the mix at plaintiff's plant and, (e) assuming that water was added at plaintiff's plant, there is an insufficient showing that the water so added caused the damage claimed. Accordingly, absent any triable issue of fact and predicated on the record before us, we find no basis for denying plaintiff summary judgment upon the mere assertion of a counterclaim which appears to be without merit (M & S Mercury Air Conditioning Corp. v. Rodolitz, 24 A.D.2d 873). Beldock, P. J., Christ and Munder, JJ., concur; Benjamin and Martuscello, JJ., dissent and vote to affirm the order on the ground that the affidavits indicate that a triable issue of fact exists as to whether plaintiff was to deliver dry or wet concrete, specification as to which was not provided for in the written order.

19680715

© 1998 VersusLaw Inc.



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