Elscint, Inc. v. Term Leasing Inc. , 542 N.Y.S.2d 561 ( 1989 )

Order, Supreme Court, New York County (Eugene Nardelli, J.), entered March 14, 1988, which denied a motion by the defendant Term Leasing, Inc. (Term Leasing) for summary judgment dismissing the complaint, unanimously reversed, on the law, and defendant’s motion for summary judgment granted, with costs.

This is an action by plaintiff for payment for goods sold and delivered. The goods consisted of X-ray tubes delivered not to the defendant but to two health facilities, Baptist Hospital of Brooklyn, New York, and Farmington Valley Radiology of Avon, Connecticut. The X-ray tubes were to be used as replacement parts for two "CAT scanners” which had been purchased by the defendant from the plaintiff and leased by the defendant to the aforesaid health facilities. The leases contained no warranties as to the condition of the CAT scanners and provided that the lessees were responsible for repairs.

On this record there is no evidence that the defendant requested the X-ray tubes or agreed to pay for them. In fact, plaintiff admits that there was no such request from defendant. It opposes summary judgment solely on the grounds that the contract of sale between plaintiff and defendant for the "CAT scanners” contained a warranty for the X-ray tube and provided for a reduction in the plaintiffs normal charge should the X-ray tubing need replacement during the warranty period. This provision, however, did not require the defendant to either order the X-ray tubes for third parties or to pay for them.

Accordingly, summary judgment should have been granted. Concur — Murphy, P. J., Sullivan, Ross, Milonas and Smith, JJ.