Opinion
CA 03-00473.
Decided June 14, 2004.
Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (Joseph G. Makowski, J.), entered December 12, 2002. The order and judgment granted plaintiff's motion for summary judgment on the third cause of action for goods sold and delivered and for dismissal of the first counterclaim for breach of contract and ordered that judgment be entered for plaintiff in the amount of $15,798.06, plus costs and interest.
CHELUS, HERDZIK, SPEYER, MONTE PAJAK, P.C., BUFFALO (JAMES S. CURTIS OF COUNSEL), FOR DEFENDANT-APPELLANT.
DUKE, HOLZMAN, YAEGER PHOTIADIS LLP, BUFFALO (MATTHEW J. BECK OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: GREEN, J.P., WISNER, HURLBUTT, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is reversed on the law with costs, the motion is denied and the first counterclaim is reinstated.
Memorandum: Plaintiff commenced this action seeking damages based on various theories of liability, including for goods sold and delivered. Defendant raised various affirmative defenses and asserted counterclaims for, inter alia, breach of contract. Supreme Court granted plaintiff's motion for summary judgment on the cause of action for goods sold and delivered, thereby ordering that judgment be entered for plaintiff in the principal amount of $15,798.06, and dismissing with prejudice defendant's first counterclaim for breach of contract. That was error. There are triable questions of fact concerning the terms of the agreement between the parties, particularly with regard to whether, as alleged by defendant, plaintiff represented that its quoted price constituted the "best rate" or "best price" charged by plaintiff to similarly situated customers. That essential factual dispute renders the award of summary judgment to plaintiff and the dismissal of defendant's counterclaim for breach of contract premature ( see Created Gemstones v. Union Carbide Corp., 47 N.Y.2d 250, 255-256; Hooper Handling v. Jonmark Corp., 267 A.D.2d 1075, 1076; B. Milligan Contr. v. Andrew R. Mancini Assoc., 174 A.D.2d 136, 138-140). Contrary to plaintiff's contention, the specification sheet is not dispositive of whether plaintiff orally promised that the prices quoted therein were its "best" prices. Further, in the absence of an integrated written contract between the parties, defendant may properly rely on parol evidence in attempting to establish that alleged term of the agreement ( see Laham v. Bahia Mehmet Bin Chambi, 299 A.D.2d 151, 152; cf. Holland v. Ryan, 307 A.D.2d 723, 724). Finally, the assertion of plaintiff that its alleged representations concerning "the price and value of objects and property" are matters of opinion and thus not actionable also is not dispositive. A contractual price term is enforceable provided only that it is objectively or methodologically ascertainable ( see Cobble Hill Nursing Home v. Henry Warren Corp., 74 N.Y.2d 475, 482-483, rearg denied 75 N.Y.2d 863, cert denied 498 U.S. 816; Kenneth D. Laub Co. v. Bear Stearns Cos., 262 A.D.2d 36; see generally Martin Delicatessen v. Schumacher, 52 N.Y.2d 105, 110).
All concur except Lawton, J., who dissents and votes to affirm for reasons stated at Supreme Court.