Opinion
September 13, 1990
Appeal from the Supreme Court, New York County (Karla Moskowitz, J.).
A motion for summary judgment, irrespective of by whom it was made, empowers a court to search the record and award judgment where appropriate. (Fertico Belgium v. Phosphate Chems. Export Assn., 100 A.D.2d 165, 171, appeal dismissed 62 N.Y.2d 802.) Our review of the record, including plaintiff GHR Energy Corp.'s admission, contained in its answer to interrogatories, that the written agreements between the parties consisted of December 10, 1982 and December 14, 1982 telexes, established defendant's defense sufficiently to warrant a court in directing judgment in its favor as a matter of law. (See, Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 967.)
Plaintiff commenced an action against defendant alleging breach of contract, conversion and fraud arising out of defendant's refusal to sell to plaintiff certain amounts of a petroleum product known as pentane plus. Pursuant to two telexes dated December 10 and 14, 1982, defendant agreed to sell plaintiff a certain amount of pentane plus in return for plaintiff supplying defendant with an amount of gasoline whose specifications had to comply with those applicable to the "Colonial Pipeline". Although the December 14 telex, addressed from plaintiff to defendant, conveyed acceptance of these conditions, the gasoline in question failed to meet the requisite standard. Consequently, defendant retained a portion of the gasoline for resale in order to recoup its loss (see, UCC 2-706) and refused to deliver the pentane plus.
In a surreply to defendant's motion for summary judgment, plaintiff for the first time challenged, in a conclusory manner, the authenticity of its confirmation telex, dated December 14. Plaintiff failed to produce the sender of the telex or offer an affidavit denying that such telex was ever sent. Since the two telexes constituted a final integrated contract for the sale of goods (UCC 2-201) the terms could not be contradicted by evidence of a prior or contemporaneous oral agreement suggesting that plaintiff did not have to meet the specifications for its gasoline. (See, UCC 2-202; Quality Packaging Supply Corp. v Carlson Co., 158 A.D.2d 936.) Additionally, defendant's authority (UCC 2-708) to recoup its losses arising out of plaintiff's breach requires the dismissal of plaintiff's action for conversion (see, e.g., Ahles v. Aztec Enters., 120 A.D.2d 903, lv denied 68 N.Y.2d 611). Finally, the IAS court's dismissal of plaintiff's fraud claim was proper in view of plaintiff's bald and conclusory allegations. (See, Chimart Assocs. v. Paul, 66 N.Y.2d 570.)
We have considered plaintiff's other arguments and find them to be without merit.
Concur — Murphy, P.J., Sullivan, Milonas, Asch and Smith, JJ.