The plaintiff is the sole proprietor of Rich-Air Conditioning & Refrigeration Co. and the defendant is Mario Cipriano d/b/a Gino's Pizzeria, in Lynbrook.

This dispute involves a contract for the removal of old air conditioners and the delivery and installation of new air conditioning units, including insulation and roof work.

The contract required payments as follows: $10,000 upon signing of the contract, $12,000 upon the delivery of the equipment, and $3,000 payment of the remainder of the balance upon completion of the work.

Plaintiff received $10,000 upon signing the contract but was not paid $12,000 upon delivery of the equipment. Defendant has refused to pay the $12,000 for the equipment and the $3,000 for the additional work because plaintiff breached the contract by the following:

(a)Incomplete work after more than one year with continuing, repeated broken promises by plaintiff to resume the work.

(b)Roof leaks caused by plaintiff.

(c)Plaintiff's protracted delays caused no heat for a tenant for five days in the middle of the winter.

(d)Disconnected heat and air conditioning and office roof leaks interfering with prospective new tenancy.

(e)Nonpayment of a subcontractor by plaintiff with subcontractor threatening mechanics lien.

Defendant has counterclaimed for damages in the sum of $25,000 because of plaintiff's breach of the contract.

Plaintiff contends that the contract requires payment of the $12,000 upon delivery of the equipment and without regard to the performance of the remaining portion of the contract. Defendant contends that no payment is due because plaintiff damaged defendant in the amount of $25,000.

Thus, the issue before the Court is whether the payment of the $12,000 for delivery of the equipment is conditioned upon plaintiff performing its other obligations under the contract. After careful review of the contract, contentions of the parties, and applicable case law, the Court concludes that plaintiff is entitled to the $12,000 upon the delivery of the equipment and this is not subject to plaintiff performing other work under the contract.

The Court of Appeals has repeatedly stated that contracts must be enforced according to its terms. In Goldstein v. AccuScan, Inc., ___ NY3d ___, 2004 N.Y. Lexis 1315 (N.Y., June 3, 2004); Signature Realty, Inc. v. Tallman ( NY3d , 2004 N.Y. Lexis 1317 (N.Y., June 3, 2004); and in Vermont Teddy Bear Co. v. 538 Madison Realty, 775 N.Y.S.2d 765 (N.Y., March 25, 2004), the Court has repeatedly instructed:

[w]hen interpreting contracts, we have repeatedly applied the 'familiar and eminently sensible proposition of law [ ] that, when parties set down their agreement in a clear, complete document, their writing should ... be enforced according to its terms' ([see R/S Assoc. v. New York Job Dev. Auth., 98 NY2d 29, 32 [2002];] W.W.W. Assoc. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639 [1990]; see Reiss v. Financial Performance Corp., 97 N.Y.2d 195, 198, 738 N.Y.S.2d 658, 764 N.E.2d 958 [2001]. We have also emphasized this rule's special import 'in the context of real property transactions, where commercial certainty is a paramount concern, and where ... the instrument was negotiated between sophisticated, counseled business people negotiating at arm's length' (Matter of Wallace v. 600 Partners Co., 86 N.Y.2d 543, 548, 634 N.Y.S.2d 669, 658 N.E.2d 715 [1995] [*3][internal quotation marks and citations omitted] ). In such circumstances, 'courts should be extremely reluctant to interpret an agreement as impliedly stating something which the parties have neglected to specifically include' (Rowe v. Great Atl. & Pac. Tea Co., 46 N.Y.2d 62, 72, 412 N.Y.S.2d 827, 385 N.E.2d 566 [1978]. Hence, 'courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing' (Reiss, 97 N.Y.2d at 199, 738 N.Y.S.2d 658, 764 N.E.2d 958 [internal quotation marks and citation omitted]).

Furthermore, in Anheuser-Busch Ice & Cold Storage Co. Inc. v. Reynolds (222 N.Y.S. 650, 654 - 55 (N.Y. Sup Ct, 1st Dept. 1927)), the Court held that when no terms in a contract condition the plaintiff's right to recovery of payment for goods delivered other than plaintiff delivering the goods, then plaintiff is entitled to payment.

[D]efendant was obligated to pay for the goods delivered either upon delivery or within 30 days. Upon delivery, therefore, of the merchandise, the contract became executed to that extent, and the plaintiff entitled to payment subject to any counterclaim which the defendant might be able to establish. It would be unreasonable so to construe the contract that the defendant would be relieved from the obligation to pay for goods delivered by showing any breach of the aforesaid conditions on the part of the plaintiff, irrespective of whether such breach occasioned any substantial damage to the defendant.

Based upon the foregoing, plaintiff is entitled to the $12,000 for the delivery of the equipment once it was delivered. The language of the contract is clear. Defendant owed plaintiff $12,000 upon the delivery of the goods. The Court must interrupt the contract as written, especially between two commercial parties.

Nevertheless, according to CPLR C3212:32 (Practice Commentary) "The court is empowered to grant summary judgment 'on such terms as may be just ... [additionally,] the court may stay entry of a judgment on a main claim pending trial of a counterclaim." Alternatively, the court "may permit entry of a judgment but stay its execution."

In the case at bar, defendant counterclaimed for $25,000, based on the estimated invoices defendant provided including estimates for HVAC electrical work, roof repairs, disconnecting and repairing the heating, replacing fuses, carpet cleaning, replacing damaged compressor, T stat wiring, and duct work for 4 thermostat covers.

Based upon the above, the plaintiff is granted summary judgment for $12,000 for delivery of the equipment. Entry of judgment is stayed pending determination of the counterclaim.

Plaintiff's additional claim for $3,000 must await trial because plaintiff allegedly breached the contract. [*4]

So ordered:

DISTRICT COURT JUDGE

Dated: June 9, 2004

Nizza & O'Brien, attorneys for plaintiff; John Jaye Markos, Esq., attorney for defendant.