| DiCarlo Distribs., Inc. v Golden Krust |
| 2008 NY Slip Op 07609 [55 AD3d 528] |
| October 7, 2008 |
| Appellate Division, Second Department |
| DiCarlo Distributors, Inc., Appellant-Respondent, v GoldenKrust, Also Known as Golden Krust Caribbean Bakery & Grill,Respondent-Appellant. |
—[*1] Barry S. Gedan, Riverdale, N.Y., for respondent-appellant.
In an action to recover damages for breach of contract, the plaintiff appeals, as limited by its brief,from so much of an order of the Supreme Court, Suffolk County (Molia, J.), entered June 13, 2007, asdenied those branches of its motion which were pursuant to CPLR 3211 (b) to dismiss the defensesand affirmative defenses contained in the answer, and for summary judgment on the complaint, and thedefendant cross-appeals from so much of the same order as denied its cross motion for summaryjudgment on its counterclaims.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the plaintiff's motion which was to dismiss the fifth affirmative defense and substituting therefora provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealedand cross-appealed from, without costs or disbursements.
In May 2005 the parties entered into a contract, pursuant to which the plaintiff became the primarysupplier of food products for the defendant, a restaurant with multiple franchise locations specializing inJamaican and Caribbean cuisine. Pursuant to the contract, the defendant was permitted to terminate thecontract at any time with adequate notice, but would be required to pay for all of the inventorypurchased by the plaintiff from third parties for resale to the defendant that remained "on hand" at theplaintiff's warehouse on the date of termination. After approximately eight months, the defendantinvoked the termination clause, and the plaintiff sent the defendant an invoice for $33,528.98. Thedefendant did not pay the invoice.
The plaintiff commenced the instant action to recover damages for breach of contract. Thedefendant asserted counterclaims, which alleged, inter alia, that the plaintiff failed to pay marketing[*2]fees that were due under the contract. The plaintiff thereaftermoved, among other things, pursuant to CPLR 3211 (b), to dismiss the defenses and affirmativedefenses contained in the answer and for summary judgment on the complaint to recover the balancedue under the contract, plus interest, costs, and attorney fees. The defendant cross-moved for summaryjudgment on its counterclaims to recover the marketing fees. The Supreme Court denied the motion andthe cross motion, finding that triable issues of fact existed as to which party first breached the contract,particularly in light of the fact that depositions had not yet been conducted. We modify.
Triable issues of fact exist precluding the award of summary judgment to either party. The plaintiffestablished, prima facie, its entitlement to judgment as a matter of law by submitting documentaryevidence indicating that, upon termination of the contract, the defendant was required to reimburse it forany losses. However, the defendant raised triable issues of fact regarding, inter alia, the plaintiff's dutiesto mitigate its losses and to mediate the contract dispute in accordance with the terms of the contract.Similarly, the Supreme Court properly denied the defendant's cross motion for summary judgment onits counterclaims, as questions of fact exist regarding when or if the contract was breached by thedefendant, which would prevent it from recovering any marketing fees (see generally Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d557, 562 [1980]).
The Supreme Court, however, improperly denied that branch of the plaintiff's motion which was todismiss the defendant's fifth affirmative defense, alleging that the plaintiff lacks the proper license to sellfood products, since the plaintiff demonstrated that the defense was without merit as a matter of law(see CPLR 3211 [b]; Vita v NewYork Waste Servs., LLC, 34 AD3d 559 [2006]). The Supreme Court nonetheless properlydenied those branches of the plaintiff's motion which were to dismiss the remaining defenses andaffirmative defenses contained in the answer since triable issues of fact exist as to those defenses andaffirmative defenses (see Faulkner v City ofNew York, 47 AD3d 879 [2008]; Lopez v 121 St. Nicholas Ave. H.D.F.C., 28 AD3d 429 [2006]).Prudenti, P.J., Santucci, Dillon and McCarthy, JJ., concur.