Triboro Quilt Manufacturing Corp. v. Nixdorf Computer, Inc. , 387 N.Y.S.2d 854 ( 1976 )

Order of the Supreme Court, New York County, entered in the office of the clerk on April 21, 1976, denying plaintiff’s motion for summary judgment and to dismiss the counterclaim for the balance of the purchase price, unanimously reversed, on the law, with $60 costs, and disbursements to appellant, and plaintiff’s motion granted. In this action by plaintiff to rescind a contract under which defendant was to furnish specified computerized equipment and programming for plaintiff’s business, defendant counterclaimed for the balance due under said contract. In addition to installing a computerized payroll program for plaintiff, defendant was required to install computerized accounts receivable and accounts payable programs. Although defendant maintained its failure to furnish the latter two programs, during the two years following the execution of the contract resulted from plaintiff’s unwillingness or inability to provide the information necessary for such programs, the record provides no evidentiary matter to support defendant’s claim. In fact, an internal office memorandum prepared by one of defendant’s employees with respect to the contractual obligations existing between plaintiff and defendant and brought to light during the prior proceedings herein, stated that defendant failed to provide the accounts receivable program and accounts payable program due to a failure of defendant’s technical department. In addition, it was disclosed that a credit memo in plaintiff’s favor for that reason was thereafter prepared by defendant. Inasmuch as we find that there are no triable issues of fact, plaintiff’s motion for summary judgment and to dismiss defendant’s counterclaim is granted. Concur&emdash;Markewich, J. P., Murphy, Lupiano, Birns and Nunez, JJ.